June 13, 2012 Articles

Discoverability of Deposition Breaks

Two leading cases are instructive on the subject of deposition recess.

By Raymond P. Ausrotas

An issue that practitioners often face is how to handle breaks when defending a client's deposition. Specifically, a recurring question confronted by courts and rulemaking bodies is whether and how much of the substance of testimony at deposition may be discussed with a client during a break without that conversation becoming a topic to be explored by opposing counsel when the proceeding resumes. The way that courts have most frequently analyzed this issue is illustrated by the competing views set forth in two leading cases on the subject: Hall v. Clifton Precision, 150 F.R.D. 525 (D. Pa.1993) and In Re Stratosphere Corporation, 182 F.R.D. 614 (D. Nev.1998).

In Hall, a defendant’s lawyer noticed the plaintiff’s deposition. Before the deposition started, the plaintiff’s lawyer asked for copies of all of the exhibits that were going to be marked that day so that they could be reviewed in advance, together. Defense counsel refused. After the deposition started, defense counsel marked a document as an exhibit and started to ask the witness about it. Plaintiff’s counsel interrupted and said “I’ve got to review it with my client.” Defense counsel objected on the record, and the parties contacted the court. The court sought letter briefing on the issue of attorney-client discussions during deposition, which was provided. Hall, 150 F.R.D. at 526.

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