The Lawletter Vol. 51 No. 5
Brett R. Turner—Senior Attorney
For every rule there is an exception, and for every exception there is a party who tries to stretch the exception far beyond its intended parameters. This principle is demonstrated by a recent California case involving the most basic discovery procedure recognized by American law: the humble deposition.
Traditionally, depositions have been taken in person. In the age of the internet, however, it is not uncommon for a deposition to be taken online. Such an online deposition was scheduled in Agnone v. Agnone, 111 Cal. App. 5th 758, 333 Cal. Rptr. 3d 119 (2025).
One of the most basic rules of deposition law is that the witness cannot be coached by counsel as to the best way to answer the question. The answer must come from the witness, not from counsel. See, e.g., Tucker v. Pac. Bell Mobile Servs., 186 Cal. App. 4th 1548, 115 Cal. Rptr. 3d 9 (2010).
In Agnone, the witness duly logged on to the deposition software at the time of the deposition. Every time counsel asked a question, however, the witness looked off camera in the same direction before answering.
Counsel taking the deposition suspected that when the witness looked off camera, he was being coached by his attorney. But counsel was not certain what objection to make. The witness's attorney was off camera, and it was uncertain whether the witness was looking in the attorney's direction or not. Counsel tried arguing that the notice of deposition required opposing counsel to have a webcam attached to his computer, but opposing counsel responded that a webcam was attached to his computer. The webcam was not turned on, of course, and opposing counsel’s computer was not logged into the deposition, but the notice of deposition did not expressly require either of these things.
In frustration, counsel adjourned the deposition and filed a motion for sanctions. Not surprisingly, the trial court granted the motion, and the witness appealed. The longstanding rule is that a deposition witness cannot be coached by counsel. The rule applies even if the deposition is taken online, and counsel stands just off-camera. Clever arguments based upon the wording in a notice of deposition cannot avoid this basic procedural rule.
The trial court imposed sanctions upon the witness alone in the amount of $9,981, and the sanctions were affirmed upon appeal. The clear lesson is that clever attempts to avoid the rule against coaching the witness in a deposition are unlikely to succeed.
