Witness coached whilst giving evidence by Zoom

I do not normally comment on US cases but a recent case caught my eye: Nuvasive, Inc. v. Absolute Medical, LLC,?No.22-10214, where the 11th?Circuit affirmed a district court’s decision to overturn an arbitration award more than 3 months after the statutory deadline to challenge the award.??This was because one of the respondents was coaching the witness who was testifying by video conference,?by texting him answers to questions as they were being asked.?

The text messages were produced in discovery in different litigation more than three months after the award.?The court waived the 3-month deadline based upon “extraordinary circumstances”?and vacated the award because of fraud.

It is the ever present risk - is the tribunal receiving the unvarnished truth? Or is the witness being coached off camera? There are many good guidelines for tribunals to adopt but to me the following are a bare minimum:

• Require a remote witness to state who, if anybody, is in the room with them (often opposing counsel may wish to have a 'watching brief' in the room where the witness is, to ensure fair play - I have seen counsel instruct foreign correspondent lawyers for that purpose);?
• Have witnesses confirm their agreement not to accept any outside communication of any kind and either surrender their phone to counsel or confirm it is switched off (this does not, however, prevent the burner phone type issue);
• Confirm with the witness that no communication has occurred during the testimony;?
• Consider whether insisting that a witness give evidence from a local counsel's offices or an arbitration centre where some safeguards can be put in place;
• Be?alert to delay (perhaps especially when interpretation is happening and the witness might understand the language of the question but wish to answer in a different language) in answering questions and eye movements to where a phone or coach might be;
• Encourage any concerns to be raised immediately so that they can be addressed (rather than, say, in closing arguments); and
• Be sure that all participants can see the witness at all times and have a camera set up to see the entire room (or do a sweep of the room with whatever camera is being used).?