November 09, 2017 Articles

Depositions: When Can You Still Talk to Your Own Witness?

By James M. Beck

An issue that frequently arises at depositions is when a lawyer can, and cannot, confer with his or her own witness during a deposition. This issue is one that, depending on the circumstances, could be the subject of an objection by either side in litigation.

The most widely cited, if not necessarily followed, decision on this question is Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), involving a deponent and his lawyer stopping an ongoing deposition to confer between themselves. One of these conferences occurred while a question was pending. The lawyer conducting the deposition objected to these conferences, and, to use a technical term, the judge went ballistic—the Hall opinion being the result. One reason was probably the rather extreme position advocated by the conferring attorney, “that an attorney and client have the right to confer with one another at any time during the taking of the client’s deposition.” 150 F.R.D. at 526. Hall laid down some law that was quite hostile to intra-deposition conferences.

  • “[A] lawyer and client do not have an absolute right to confer during the course of the client’s deposition.” Id. at 528.
  • “[P]rivate conferences . . . tend, at the very least, to give the appearance of obstructing the truth.” Id.
  • “To allow private conferences initiated by the witness would be to allow the witness to listen to the question, ask his or her lawyer for the answer, and then parrot the lawyer’s response.” Id.
  • “These rules also apply during recesses. . . . Private conferences are barred during the deposition, and the fortuitous occurrence of a coffee break, lunch break, or evening recess is no reason to change the rules.” Id. at 529.
  • “To the extent that such conferences do occur . . . [they] are not covered by the attorney-client privilege, at least as to what is said by the lawyer to the witness. Therefore, any such conferences are fair game for inquiry by the deposing attorney to ascertain whether there has been any coaching and, if so, what. Id. at 529 n.7 (dictum).
  • The only exception is a conference to determine if a privilege needs to be asserted. Id. at 529–30 (“assertion of a privilege is a proper, and very important, objection during a deposition, [so] it makes sense to allow the witness the opportunity to consult with counsel”).

Pennsylvania federal courts have tended to follow Hall. See, e.g., Dalmatia Import Grp., Inc. v. Foodmatch, Inc., 2016 WL 6135574, at *2 (E.D. Pa. Oct. 21, 2016) (“The rule in Hall . . . on attorney-client communications is widely accepted among the Pennsylvania district courts”) (collecting cases); Vnuk v. Berwick Hosp. Co., 2016 WL 907714, at *3 (M.D. Pa. Mar. 3, 2016) (same). On the other hand, Pennsylvania state courts have not. See Acri v. Golden Triangle Mgmt. Acceptance Co., 142 Pitts. Legal J. 225 (C.P. Allegheny Cty. 1994) (rejecting Hall in toto) (Wettick, J.).

Some aspects of Hall were adopted in AmerisourceBergen Drug Corp. v. CuraScript Inc., 83 Pa. D. & C. 4th 362 (C.P. Phila. Cty. 2007) (attorney could inquire into “subject matter” but “not substance” of conference during break in deposition where circumstances suggested coaching; first question after break induced changed testimony), but that case was reversed “in part” on appeal in an uncitable memorandum Superior Court decision. See 945 A.2d 753 (Pa. Super. Ct. 2007) (table). So it is unclear what was affirmed and what was not.

A problematic aspect of Hall is the paucity of precedent for its various holdings. Not all judges have viewed the issue in the same way. A recent example of the opposing view is Chesbrough v. Life Care Centers, Inc., 31 Mass. L. Rptr. 629, 2014 WL 861200 (Mass. Super. Ct. Feb. 14, 2014), which viewed Hall “as a remedy worse than the disease.” Id. at *6. Instead of a blanket waiver of privilege, Chesbrough held only that “if the timing of a requested break or a post-recess change in a witness’s testimony suggest” improper coaching of a witness, opposing counsel may

inquire of the witness both as to the reason for the break and/or the change in testimony. If the witness invokes the attorney-client privilege in response to such inquiry, deposing counsel may properly insist on the record that the deponent acknowledge the fact that a conference with counsel was held, the subject matter (but not substance) of the conference to which privilege is claimed, and the time, place and participants in the conference.

Id. at *8.

Should a court later find impropriety, “adverse inferences may be drawn against a party in civil litigation who invokes the attorney-client privilege when declining to answer an opposing party’s question.” Id.

In one of the few high court decisions on the issue, the Nevada Supreme Court charted a middle ground between Hall and Hall’s detractors, in Coyote Springs Investment, LLC v. Eighth Judicial District Court, 347 P.3d 267 (Nev. 2015). While finding Hall’s preclusion of conversations between witness and counsel during depositions “unnecessarily restrictive,” Coyote Springs did “hold that attorneys may not request a break to confer with witnesses in a discovery deposition unless the purpose of the break is to determine whether to assert a privilege.” Id. at 273. After any permitted mid-deposition conference, “the attorney must place the following on the record: (1) the fact that a conference took place; (2) the subject of the conference; and (3) the result of the conference, specifically, the outcome of the decision whether to assert a privilege.” Id. The onus of establishing the privilege was on the deponent’s counsel.

In In re Flonase Antitrust Litigation, 723 F. Supp. 2d 761 (E.D. Pa. 2010), the issue was somewhat different: Opposing counsel acted on the dictum in the Hall footnote and sought to pierce an asserted privilege, but the in-deposition conference underlying the dispute was essentially the same. Because a privilege was directly implicated in Flonase—unlike in HallFlonase first had to apply state law (per Federal Rule of Evidence 501). After reviewing the law, Flonase found “no indication that such communications [off-the-record conferences] fall outside the attorney-client privilege.” 723 F. Supp. 2d at 764. The court found a privilege on the facts—a former employee of the client of the counsel with whom the witness conferred. Id. at 764–65. Other facts (unlike those in Hall) were also better for the deponent: The witness “testif[ied] under oath that no witness coaching took place during those conversations.” Id. at 765.

One other thing to keep in mind when deposition conferences are involved is the length of the adjournment of the deposition. Both Hall and Flonase dealt with nothing beyond brief interruptions of questioning. Considerations change when, for completely unrelated reasons, a deposition is continued for days or weeks. At some point along the continuum, the rationale for Hall breaks down and issues concerning a deponent’s right to counsel take on more weight.

In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D. Nev. 1998), did not involve any deposition conduct; it addressed instead a prophylactic set of standards for depositions yet to take place. In that context, Stratosphere cut Hall down to size. The court prohibited conferences only during breaks “initiated” by the deponent or his or her counsel. Otherwise,

[t]his Court will not preclude an attorney, during a recess that he or she did not request, from making sure that his or her client did not misunderstand or misinterpret questions or documents, or attempt to help rehabilitate the client by fulfilling an attorney’s ethical duty to prepare a witness. So long as attorneys do not demand a break in the questions, or demand a conference between question and answers, the Court is confident that the search for truth will adequately prevail.

In re Stratosphere Corp., 182 F.R.D. at 621 (emphasis added).

Obviously, no loss of privilege existed for conferences allowed by the court. Id. at 622 (“disagree[ing] with the contention that any conference counsel may have with the deponent during a deposition waives the claim of privilege”).

Other courts seem to agree more with Stratosphere than with Hall, and these decisions allow deponents to confer with counsel during breaks in the action (such as for lunch or at the end of a day) not undertaken solely for the purpose of conferring. Cannon v. Time Warner NY Cable LLC, 2015 WL 2194620, at *1-2 (D. Colo. May 7, 2015) (“no bar on attorney consultation with a client during the client’s deposition . . . so long as no question is pending”); Murray v. Nationwide Better Health, 2012 WL 3683397, at *5 (C.D. Ill. Aug. 24, 2012) (“counsel may have a private conference with [the witness] during a recess that counsel did not request”); Ecker v. Wis. Cent. Ltd., 2008 WL 1777222, at *3 (E.D. Wis. Apr. 16, 2008) (“the mere fact that counsel . . . conferred with the witness during a break after the [opposition] completed his examination does not warrant sanctions”); Henry v. Champlain Enters., Inc., 212 F.R.D. 73, 92 (N.D.N.Y. 2003) (refusing on privilege grounds to require disclosure of what “counsel said to [the deponent] during the break in the deposition”); Odone v. Croda Int’l PLC, 170 F.R.D. 66, 69 (D.D.C. 1997) (a court “cannot penalize an attorney for utilizing a five-minute recess that he did not request”); State ex rel. Means v. King, 520 S.E.2d 875, 882 (W. Va. 1999) (“an attorney may confer with his or her client witness during a recess or break in a discovery deposition, so long as the attorney did not request a break in the questions or request a conference between a question and an answer for an improper purpose”); Board of Trs. of S. Ill. Univ. v. Jones, 2015 WL 224244, at *9 (Ill. App. Ct. Jan. 16, 2015) (no right to question deponent about a “conversation with his attorney during a break in his deposition”); Yoskowitz v. Yazdanfar, 900 A.2d 900, 906 (Pa. Super. Ct. 2006) (no sanctions for conferring “during a break, and not during questioning”); In re PSE&G S’holder Litig., 726 A.2d 994, 997 (N.J. Super. Ct. Ch. Div. 1998) (deponents allowed to confer with counsel during recesses between days of depositions, but not during lunch break and other breaks during the day of deposition; deferring any privilege issues).

On the other hand, in United States v. Philip Morris Inc., 212 F.R.D. 418, 420 (D.D.C. 2002), the court held that, as long as “there is no temporal interruption and the deposition is continued on a day-to-day basis with no intervening passage of time,” there were to be no overnight consultations between the witness and counsel. Id. at 420. If, however, the deposition “cannot be held on consecutive days,” conferences were allowed. Id.

The longer the break, the less likely it is that Hall-type restrictions on consultation between deponent and counsel will be imposed. In McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648 (D. Colo. 2001), the court declined to impose any restrictions where the gap between direct and cross might be “several weeks”:

The relief requested . . . here is particularly inappropriate. It would have the effect of barring [the deponent] 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, [it] 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.

Id. at 650. Del. Super. Ct. R. Civ. P. 30(d)(1) (no conferences during “recesses or continuances” in depositions “of less than five calendar days”).

There are no decisions, and only one court rule (S.C. R. Civ. P. 30(j)(5)), see In re Anonymous Member of S.C. Bar, 552 S.E.2d 10, 16–17 (S.C. 2001) (discussing rule)), that prohibits conferences during breaks in depositions without regard to the length of the adjournment.

Most of the precedent following Hall deals with interruptions by the deponent’s counsel during questioning for the sole purpose of conferring: Gavrity v. City of New York, 2014 WL 4678027, at *4 (E.D.N.Y. Sept. 19, 2014) (ordering responses to questions concerning mid-deposition conference to review videotapes); S. La. Ethanol, L.L.C. v. Fireman’s Fund Ins. Co., 2013 WL 1196604, at *7 (E.D. La. Mar. 22, 2013) (imposing sanctions for “unilaterally taking a ‘break’ in the deposition, and speaking to [the deponent]”); ReedHycalog UK, Ltd. v. Diamond Innovations Inc., 2010 WL 3238312, at *7 (E.D. Tex. Aug. 12, 2010) (listing, as one of many bases for sanctions, conferring with a deponent “during a break in his deposition, which led him to change his answer to an important question, and then [refusing] to let him answer questions about the discussion with counsel”); BNSF Ry. Co. v. San Joaquin Valley R.R. Co., 2009 WL 3872043, at *3–4 (E.D. Cal. Nov. 17, 2009) (sanctioning an “unscheduled break . . . for the witness when a question was pending”); Plaisted v. Geisinger Med. Ctr., 210 F.R.D. 527, 534–35 (M.D. Pa. 2002) (opposing counsel allowed to inquire into substance of conferences that occurred while questions were pending); Applied Telematics, Inc. v. Sprint Corp., 1995 WL 79237 (E.D. Pa. Feb. 22, 1995) (conferring while a question was pending); Armstrong v. Hussmann Co., 163 F.R.D. 299, 303 (E.D. Mo. 1995) (not entirely clear, but conferences seem to be during questioning); Langer v. Presbyterian Med. Ctr. of Phila., 1995 WL 79520, at *11 (E.D. Pa. Feb. 17, 1995) (“confer[ring] with [the] witness constantly during [the] deposition” was sanctionable), vacated on reconsideration on other grounds, 1995 WL 395937 (E.D. Pa. July 3, 1995); Holland v. Fisher, 1994 WL 878780, at *6 (Mass. Super. Ct. Dec. 21, 1994) (an attorney has no right to confer with a deponent while a question is pending); Alaska R. Civ. P. 30(d)(1) (prohibiting “[c]ontinual and unwarranted off-the-record conferences between the deponent and counsel following the propounding of questions and prior to the answer”); N.J. Ct. R. 4:14-3(f) (no conferences “while testimony is being taken except with regard to the assertion of a claim of privilege, a right of confidentiality or a limitation pursuant to a previously entered court order”); N.Y. Local Civ. R. 30.4 (“An attorney for a deponent shall not initiate a private conference with the deponent while a deposition question is pending, except for the purpose of determining whether a privilege should be asserted.”); cf. Ngai v. Old Navy, 2009 WL 2391282, at *4–5 (D.N.J. July 31, 2009) (text messages sent between counsel and deponent during deposition and during breaks during day were not privileged).

So putting all this together, a few rules of thumb emerge.

  • First, conferring with the deponent (on anything other than privilege) while a question is pending is asking for trouble. The weight of authority puts that on the wrong side of the line.
  • Second, taking a break during questioning for the sole purpose of conferring with the deponent has also drawn quite a bit of judicial fire. Expect trouble if doing this, although sanctions may well be avoided if the witness testifies that no coaching occurred.
  • Third, conferring over lunch or other breaks during the deposition for unrelated reasons is more likely to be viewed as permissible. Again, if the witness testifies that no coaching occurred, so much the better.
  • Fourth, just as the weight of authority is against conferring with questions pending, once the delay extends to overnight breaks, the weight has shifted decisively to such conferences being allowable. Very little contrary precedent exists.
  • Fifth, once we get into the realm of multi-day adjournments, except possibly in South Carolina (and Delaware, if less than five days), conferences between counsel and the deponent are all right.

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