You are taking the deposition of an important party witness. At the beginning of your deposition you and the witness discussed all of the commitments traditionally presented and made, including when you would take breaks and speaking with her attorney. The witness agreed with you about taking a break every hour. She agreed that if she needed a break before that point she would tell you. You discussed when she could speak with her lawyer. Finally, she agreed that if you have a question pending she would answer the question before taking the break. You have just asked a question and the defending lawyer announces they are taking a break. He and the witness get up and leave the room. What should you do?
In their brand new 4th edition of The Effective Deposition, Peter Hoffman and David Malone discuss the importance of Set-Up and Commitments so the witness understands the deposition process and his rights and obligations. In Chapter 6.2, Malone and Hoffman suggest talking with the witness about breaks to “show the jury that this deposition was not a ‘third-degree’ interrogation.” They also suggest an instruction about talking to your attorney as a means of generating leverage so the witness will not attempt to speak with counsel before answering the tough question.
Hoffman and Malone then offer the caveat that a witness is going to take a break whether or not the deposing attorney gives the break instruction or not. The witness and opposing counsel will decide when the witness is too tired to go on, no matter what instruction you give. Like wise, the instruction regarding talking with counsel is trumped when it may be a matter of privilege. Although there is conflicting case law on even this matter points out NITA’s Executive Director John Baker citing a ruling in the tobacco class action cases where even matters of privilege were deemed waived for discussions while a question was pending.
Professor Louis Natalli, of Temple law school, says he does not give an instruction regarding breaks for the reasons discussed above. He prefers to follow the directions given by the court in the 1993 Pennsylvania case, Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa 1993). In that decision Judge Gawthrop provided guidelines for deposition conduct in the Eastern District of Pennsylvania, including a prohibition of any off the record conferences between the attorney and the witness during breaks or recesses, except to decide whether to assert a privilege.
Texas lawyer Mark Shoffner, of Andrews Kurth, LLP, in his article Be Careful On Break: Privilege and the Deposition Recess (http://www.dallasbar.org/content/be-careful-break-privilege-and-the-deposition-recess), talks about how other jurisdictions have dealt with conferring on breaks. In New Jersey, a federal court held the examining attorney was entitled to explore whether discussions during a break interfered with the fact-finding goal of the deposition process, see Chassen v. Fidelity Nat’l Title Ins. Co., 2010 WL 5865977 (D.N.J. July 21, 2010) aff’d 2011 WL 723128 (D.N.J. Jan. 13, 2011).
Other Federal Courts address conferring with the client through local rule. South Carolina’s rule prohibits conferences between counsel and deponents during breaks or recesses. The exception to the rule is to assert a privilege, make an objection or move for a protective order. The rule further requires that the lawyer who confers with the deponent then report the results of the conference on the record. The rule also permits the inquiring lawyer to ask questions about the conferences. D.S.C. L.R. 30.04.
Delaware’s local rule provides: “From the commencement until the conclusion of deposition questioning by an opposing party, including any recesses or continuances, counsel for the deponent shall not consult or confer with the deponent regarding the substance of the testimony already given or anticipated to be given, except for the purpose of conferring on whether to assert a privilege against testifying or on how to comply with a court order.” D. Del. L.R. 30.6.
These out-of-state decisions and local rules are anathema to the principle that attorney-client communications for the purpose of seeking, obtaining, or providing legal advice are sacrosanct. However, the attorney-client privilege, like all privileges, is not absolute, and these jurisdictions have determined that excluding these conversations from the privilege altogether assists in the truth-finding mission of discovery.
In his blog, Drug and Device Law, Jim Beck comments in a post entitled Depositions – When Can You Talk To Your Own Witness? Beck offers five suggestions.
Even if the reason for conferring with the witness is not a matter of privilege there are reasons for speaking with the witness during the deposition – confusion over a question, correcting mistakes, or instances of false or misleading answers. Certainly, matters of ethical responsibility should allow for a discussion with the client and be permissible. It still raises questions of witness credibility in the eyes of the deposing lawyer.
Commentators and some courts comment that the pendulum has swung too far in one direction with these limitations. Dennis Suplee and Diana Donaldson in their book, The Deposition Handbook (5th Ed. Aspen Publishers 2011) suggest the Hall decision may go too far in prohibiting conferences during normal breaks, lunch breaks, and overnight breaks (§6.11). In Colorado, Federal Magistrate Boyd Boland seems to have thought so, when he wrote in McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648 (D.Colo.2001):
I agree with the reasoning of In re Stratosphere and our local rule 30.1C that the truth finding function is adequately protected if deponents are prohibited from conferring with their counsel while a question is pending; other consultations, during periodic deposition breaks, luncheon and overnight recesses, and more prolonged recesses ordinarily are appropriate. McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. at 650.
Judge Boland reasoned further that to follow the Hall blanket order of all attorney deponent conferences once the deposition starts would lead to absurd results as follows:
The relief requested by the plaintiffs here is particularly inappropriate. It would have the effect of barring Mr. Zdeb from conferring with his counsel for the entire period between the sessions of his deposition, in this case several weeks. Taken to its logical extreme, the plaintiffs’ argument would bar consultation between a party and his lawyer from the time of his deposition through trial, because there might be “coaching” which would cause a party-witness to alter his deposition testimony at trial. That result is absurd. McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. at .650.
What should happen if counsel and the witness take a break when a question is pending? Make a record of the conference while a question is pending. When lawyer and deponent return, inquire about the subject of the conference. Ask if the deponent received coaching of any type during the meeting. Confirm that the question did not involve a matter of privilege. Ask the question again. If this occurs more than once, make sure you have made a good record and raise the issue with the judge or magistrate.