The idea? Jeffrey would wear a COVID mask throughout the deposition. Because of the mask, the plaintiff’s lawyer couldn’t see Jeffrey’s lips move, so he wouldn’t know that Jeffrey was providing Elizabeth with badly needed coaching throughout the deposition! It would rain lemonade!
Barksdale’s lawyer began the deposition by requesting that Jeffrey and Elizabeth remove their masks. No, Jeffrey insisted, the masks must stay in place because of unspecified “COVID rules.” The deposition commenced with a masked Jeffrey defending his masked client.
Alas, Jeffrey had overlooked one small detail. True, Barksdale’s lawyer couldn’t see Jeffrey’s lips move. But he could hear him, just as he could hear Elizabeth. And what he heard repeatedly was Jeffrey dictating an answer to each deposition question, followed immediately by Elizabeth’s parroting of Jeffrey. (There’s no truth to the rumor that at one point Elizabeth, carried away with the routine, squawked, Polly wants a cracker.)
When the Barksdale lawyer viewed the video later, he was able to identify over fifty times when Jeffrey in effect played Edgar Bergen to Elizabeth’s Charlie McCarthy. He was not amused. He filed a motion for sanctions against both Jeffrey and Elizabeth.
What did Jeffrey have to say in defense of his Edgar-and-Charlie act? Two things. First, he invoked the what-about defense, which you may recall from grade school: When the teacher accuses Tommy of cheating, he cries, What about Johnny? He cheated, too! In this case, Jeffrey cited alleged discovery violations by plaintiff’s counsel. The judge declined to consider them in determining Jeffrey’s culpability for his masked coaching.
Jeffrey could have used a mask in delivering his second line of defense because it barely passed the straight-faced test. His coaching was legitimate, he argued, because all the answers he gave Elizabeth were the right answers. Accordingly, far from impeding justice, he was serving it! The court rejected the defense out of hand, noting that Jeffrey’s conduct undermined the truth-seeking purpose of discovery and eroded confidence in remote deposition proceedings.
The court found Jeffrey guilty of misconduct and referred a request for attorney discipline to the presiding judge for further proceedings. As a sanction, Jeffrey was disqualified from continuing to represent Elizbeth in the case.
The plaintiff requested sanctions against Elizabeth for her complicity in Jeffrey’s misconduct. Specifically, the plaintiff proposed that all of Elizabeth’s claims and defenses be dismissed with prejudice. The court deemed that proposal unduly harsh, noting that Jeffrey was the primary offender.
Nor was the court receptive to the plaintiff’s alternative proposal that Elizabeth be prohibited from testifying at the trial on the questions for which Jeffrey had provided her answers during the deposition. That, the court reasoned, would be punishing Elizabeth for wrongdoing that was essentially Jeffrey’s.
But the court accepted the plaintiff’s final proposal, allowing plaintiff to show the jury video highlights of Elizabeth’s parroting of Jeffrey’s answers at the deposition. For what purpose? So that the jury could consider that behavior in assessing her credibility.
The case is Barksdale School Portraits v. Williams, D. Mass.
