The Remote Video Deposition Dilemma: When Legal Gamesmanship Meets the Truth-Seeking Imperative
In Agnone v. Agnone, the California Court of Appeal upheld sanctions against a witness whose attorney refused to appear on camera during a remote deposition while physically present with the client, finding the conduct constituted an “unusual form of discovery abuse” that undermined the truth-seeking function of discovery.
There is an involving caselaw related to services of deposition interpreters in remote depositions, which sometimes results in sanctions for deposition misconduct; on an occasional mistreatment of a deposition interpreter during an interpreted deposition and on a failure by a deponent to properly request a deposition interpreter. The rapid adoption of remote depositions during the COVID-19 pandemic created a legal frontier with more questions than answers. While videoconferencing technology offered unprecedented flexibility, it also introduced novel opportunities for procedural gamesmanship. The 2025 California Court of Appeal decision in Agnone v. Agnone, 111 Cal.App.5th 758 (2025) provides a landmark ruling addressing one of the most contentious issues to emerge from this new landscape: whether a witness’s attorney, physically present with their client during a remote deposition, can refuse to appear on camera. The court’s answer—resounding in its condemnation of such conduct—has reshaped the ethical boundaries of remote discovery practice.
A Deposition Derailed
The dispute arose from a marital dissolution proceeding between Shawn Agnone and her former husband, Frank Charles Agnone II. During discovery, Frank disclosed that he had placed thousands of dollars in sports bets with a third party, Kenneth Madick, during the marriage. Seeking financial documentation, Shawn subpoenaed Madick for a remote deposition via Zoom, specifically requiring that “his counsel shall participate using their own computer equipped with a webcam.”
Madick appeared as required, but his attorney, Jeffrey Katofsky, adopted a position that would become the central controversy: while confirming he was physically present in the same room as his client, Katofsky refused to activate his webcam. Shawn’s counsel immediately objected, expressing concern that without visual confirmation, he couldn’t determine whether Katofsky was making “any visual signs” or otherwise coaching Madick during testimony. The concern appeared substantiated when Madick repeatedly looked away from his camera—presumably toward his attorney—before answering questions.
Despite multiple requests that Katofsky either activate his webcam or sit within the frame of Madick’s camera, the attorney steadfastly refused, stating only: “I am not doing that.” When challenged, Katofsky offered a technical defense: “Your notice requires my computer to be equipped with a webcam. My computer is equipped with a webcam; so we complied with your notice.” The deposition was ultimately terminated, and Shawn moved for sanctions.
Procedural Posture: Evolving Legal Standards
The procedural history reveals a legal system grappling with how to apply traditional discovery principles to novel technological scenarios. Initially, the trial court granted sanctions against Madick in the amount of $9,981. The Second District Court of Appeal reversed, holding that the general sanctions provisions of California’s Civil Discovery Act did not independently authorize monetary sanctions for such misconduct.
The California Supreme Court then granted review and deferred consideration pending its decision in City of Los Angeles v. PricewaterhouseCoopers, LLP (PwC), a case that would fundamentally reinterpret the scope of judicial authority to sanction discovery abuse. After PwC established that trial courts could invoke independent authority under Civil Discovery Act sections 2023.010 and 2023.030 for “unusual forms of discovery abuse,” the Supreme Court remanded Agnone for reconsideration. On second look, the Court of Appeal affirmed the sanctions order, establishing important precedent for remote deposition practice.
The PwC Framework: Filling the Gaps in Discovery Sanctions
The Court of Appeal’s decision in Agnone cannot be understood without reference to the California Supreme Court’s intervening decision in PwC. Prior to PwC, many courts and practitioners believed that sections 2023.010 (defining “misuses of the discovery process”) and 2023.030 (authorizing sanctions for such misuse) were merely definitional provisions that required pairing with method-specific sanctions provisions elsewhere in the Civil Discovery Act.
The PwC court rejected this restrictive reading, recognizing that such an interpretation would leave courts powerless to address novel forms of discovery abuse not specifically anticipated by the Legislature. As Justice Egerton noted in Agnone, quoting PwC: “It seems … unlikely that a Legislature concerned with stemming the tide of discovery abuse would have consigned courts confronting patterns of egregious abuse to the choice …: either attempt to fit the component parts of the pattern into individual method-specific sanctions rulings, or else rely purely on their inherent authority.”
Instead, the Supreme Court established that trial courts “may invoke its independent authority to impose sanctions under sections 2023.010 and 2023.030 only when confronted with an unusual form of discovery abuse, or a pattern of abuse, not already addressed by a relevant sanctions provision.” This “gap-filling” purpose became the analytical framework for evaluating Katofsky’s conduct in Agnone.
The “Unusual Form of Discovery Abuse” in Agnone
Applying the PwC framework, the Agnone court found that Katofsky’s conduct constituted precisely the type of “unusual form of discovery abuse” warranting sanctions under the general provisions. Several aspects of the court’s reasoning are particularly noteworthy:
1. The Truth-Seeking Function Frustrated: The court emphasized that the “central truth-seeking function” of discovery was “plainly frustrated” by the attorney’s refusal to appear on camera. Without visual confirmation of the attorney’s behavior, opposing counsel could not determine—much less prove—whether improper coaching was occurring. This created what the court implicitly recognized as an asymmetric information problem: the attorney could potentially engage in improper signaling while remaining shielded from scrutiny.
2. The Coaching Concern as Substantive, Not Speculative: Madick argued there was “no evidence” of actual coaching, but the court rejected this formalism. The very nature of the conduct made evidence-gathering impossible, which was precisely why it constituted abuse. As the court noted: “Shawn moved for sanctions on the ground that Madick’s and Katofsky’s ‘gamesmanship’ made it impossible to tell—and thus impossible to develop evidence of—whether Katofsky was attempting to coach Madick.” In doing so, the court recognized that some forms of discovery abuse are insidious precisely because they evade traditional proof mechanisms.
3. Misinterpretation of Procedural Rules: Madick’s attorney relied on California Rules of Court, rule 3.1010, which states that an attorney may “appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means.” However, the court read this provision in context with rule 3.1010(a)(3), which provides that an attorney “may—but need not—’be physically present at the deposition at the location of the deponent.'” Read together, these provisions allow remote participation when the attorney is not physically present with the client—not as blanket authorization for audio-only participation while physically co-located.
4. The Technical Compliance Defense Rejected: Katofsky’s argument that he had technically complied with the deposition notice by having a webcam-equipped computer (even if he refused to use it) was particularly unpersuasive to the court. As the opinion notes, “The rule cannot reasonably be read as a blanket authorization for a deponent’s attorney to participate by audio-only means while physically present with his client under circumstances where the attorney could surreptitiously coach the deponent outside opposing counsel’s view.”
Implied Findings and Appellate Deference
Madick raised a procedural challenge, arguing that sanctions under sections 2023.010 and 2023.030 were improper because “the trial court did not make a finding” that he violated these specific statutes. The Court of Appeal applied well-established principles of appellate review to reject this argument.
First, the court noted that discovery sanctions orders are reviewed for abuse of discretion, with the burden on the appellant to establish error. Second, even absent express findings, appellate courts must review the trial court’s exercise of discretion based on implied findings supported by substantial evidence. Third, in determining whether evidence supports an implied finding, the record must be viewed in the light most favorable to the trial court’s order, drawing all reasonable inferences to support the court’s discretion.
Applying these principles, the court readily implied the necessary finding from the record: “Although the trial court’s written order did not expressly find these statutes authorized the imposition of sanctions against Madick, we may (and, indeed, must) readily imply this finding based on the abusive conduct evidenced in the deposition transcript.”
Broader Implications for Remote Practice
The Agnone decision carries significant implications for remote deposition practice beyond its specific facts:
1. Attorney Visibility Standards: The ruling establishes that when an attorney is physically present with a witness during a remote deposition, they must be visible to all participants. This preserves the traditional deposition dynamic where all parties can observe interactions between witness and counsel.
2. Ethical Boundaries in Virtual Settings: The decision reinforces that technological novelty does not create ethical loopholes. Attorneys cannot use remote proceedings to engage in conduct that would be plainly improper in person.
3. Notice and Consent Issues: While not directly addressed, the opinion suggests that proper deposition notices should explicitly address visibility expectations for attorneys physically present with witnesses.
4. The Persistence of In-Person Norms: Despite the remote format, the court applied traditional deposition norms and expectations. The truth-seeking function of discovery remains paramount, regardless of technological medium.
5. Sanctions as Deterrent: By affirming sanctions even after the underlying motion to compel was withdrawn (because the parties settled), the court signaled that discovery abuse has independent consequences not nullified by case resolution.
Preserving Integrity in the Digital Age
The Agnone decision represents a crucial step in adapting centuries-old legal procedures to twenty-first-century technology. In affirming sanctions for an attorney’s refusal to appear on camera during a remote video deposition, the California Court of Appeal recognized that the virtual environment creates not only opportunities for efficiency but also vulnerabilities for abuse.
Perhaps most importantly, the court rejected formalistic arguments that prioritized technical compliance over substantive fairness. Katofsky’s defense—that he complied with the letter of the deposition notice by having a webcam, even if he refused to use it—failed because it ignored the fundamental purpose of discovery: the search for truth. As remote proceedings become increasingly permanent features of legal practice, Agnone serves as a reminder that technology should enhance, not undermine, the integrity of the judicial process.
The decision also illustrates the legal system’s capacity for evolution. Through the interplay of trial court discretion, appellate review, and Supreme Court guidance in PwC, California courts have developed a coherent framework for addressing novel forms of discovery abuse. This flexible approach, anchored in the “truth-seeking function” of discovery, provides meaningful guidance for practitioners navigating the evolving landscape of remote proceedings.
As Justice Egerton concluded: “Based on this record, we have no trouble concluding the trial court reasonably exercised its discretion to impose sanctions for this ‘unusual form of discovery abuse’ that plainly frustrated the deposition’s ‘truth-seeking function.'” In an era of rapid technological change, this commitment to substance over form remains essential to preserving the fairness and integrity of the justice system.
Get in touch with legal translators and deposition interpreters at All Language Alliance, Inc. to reserve a competent deposition interpreter or a check interpreter for a remote video deposition when a deponent is fluent in Low German Mennonite; Mongolian; Thai; French; Korean; Japanese; Spanish; Russian; Mandarin; Cantonese, and other common, exotic and rare foreign languages.
#alllanguagealliance #depositionsanction #discoveryabuse #depositioninterpreter #depositioninterpreterservices #discovery #remotedeposition #virtualvideodeposition #remotevideodeposition #Zoomdeposition #Zoomdepositioninterpreter #remotedepositioninterpreter #rarelanguageinterpreter #exoticlanguageinterpreter #discoverysanction
Up Next: Why a Power of Attorney Executed in Argentina Was Invalid in Florida in Parisi v. de Kingston