How Videography Can Impact a Deposition

December 3, 2014

The use of legal video depositions offers a number of benefits over the use of traditional written depositions. One of the benefits of using videography is everything is digitally recorded and documented. Having a deposition digitally documented undermines an individual’s capability to be dishonest during the deposition. This case is an example of how video recording would have prevented this incident from happening all together.

Recently, a lawyer was just accused of showing a note to a client during a deposition and then lying about what was written on the memo.

During an October 2012 deposition, Ryan ran into trouble when his client was struggling to answer a question. During the testimony, the opposing lawyer interrupted with this objection:

“I would like to record to reflect Mr. Ryan is writing notes to his client while she is answering a question. If he wishes to prove that’s not true rather than going on a rampage, he can turn back over the notepad that he just turned over, and he can show us all what he wrote on it. But I will, again, be bringing up to the court that he was writing on a notepad and when I looked at him, he turned it over.”

Ryan’s responded by stating that the lawyers opposing statement was “100% false.”

Ryan’s client was then asked under oath what was written on the notepad and if the opposing lawyer’s accusations were true. The client said that she saw the lawyer flip over the pad but she did not see what was written on it. The opposing lawyer suspended the deposition and called the court. Later, Ryan said on the record that the notepad only contained the courthouse address.

At a status conference that afternoon, the opposing counsel sought sanctions. Ryan showed the notepad to the judge only containing the courthouse address on it. He admitted to flipping the notepad but stated that they never asked to see what was written on it at the time. Questioned on why he didn’t offer to show the notepad, Ryan stated that he was “deeply offended” and the opposition counsel had been whispering to their witnesses as well.

The court reporter at the deposition was then asked to give her testimony and it shed a different light before the judge. She stated that Ryan had written something on the notepad, shoved it toward his client, and then flipped the notepad over when accused by the opposing counsel. The court reporter couldn’t state what was on the notepad but she could tell that there were two pieces of writing on it, one at the top and then one further down. Once the deposition was suspended, said the court reporter, Ryan left for less than a minute. When he returned he was more than willing to show the notepad and he placed it on the table. The writing was not the same though. The new version was missing some writing and she could tell that a sentence was also missing on the top of the note pad.

Ryan’s client also testified before the judge. She stated that there was no way the court reporter could have seen what was on the notepad while she was working. The client also said that Ryan showed her the notepad before he left the room and there was only a courthouse address on it.

The federal judge ruled in favor of the opposing counsel. The court reporter’s testimony was found “wholly credible” and noted that the client appeared uncertain when she testified about what was written on the notepad. “In short,” the 1st Circuit said, “The district court found as a matter of fact that Ryan attempted to communicate surreptitiously with his client while a question was pending at a deposition, that Ryan manufactured false evidence, and that Ryan lied to the court.

The court motioned that Ryan videotape further depositions and he was ordered to pay costs of litigating.

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