May 06, 2022 | Legal News

The Ethics of Zoom Testimony

Remote deposition and hearing testimony has become common in the wake of the COVID-19 pandemic. Although video testimony is safer, quicker, cheaper, and easier to use, the industry is grappling with its role in a post-pandemic world. For example, a recent case demonstrates how the technology’s ease of use can lead to egregious abuse.

In Nuvasive, Inc. v. Absolute Medical, LLC, et al., a Florida federal court took the extraordinary step of vacating an arbitration award and considering the ‘death penalty’—entry of a default judgment for plaintiff based on defendants’ misconduct. Already in hot water for destroying evidence and engaging in delay tactics relating to an underlying arbitration, defendants’ unethical conduct during Zoom testimony pushed the court over the edge. In the underlying arbitration, one of the defendants swore that no unauthorized person could communicate with him during his Zoom testimony at the final hearing. In the subsequent court matter, however, plaintiff obtained text messages between the testifying defendant and another defendant. By comparing the transcript of the testimony with the time-stamped text messages, the court found clear and convincing evidence that the non-testifying defendant had been coaching the testifying defendant during his testimony. What’s worse, the coaching defendant was in his lawyer’s office at the time he sent the text messages to the testifying defendant, suggesting that the lawyer was complicit in the misconduct.

The case serves as a stark reminder that the ethical rules which govern litigation proceedings apply both inside and outside the physical courtroom. And parties abuse them at their own peril.

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