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.

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