Discovering Off-the-Record Conversations Between a Deponent and His or Her Counsel

Two Schools of Thought

The answer turns out to be not so simple. If the conversation is for purposes of determining the existence of privilege, the universal rule is that the conversation itself is protected, although it should be noted on the record together with its subject matter and conclusion. See United States v. Philip Morris, Inc., 212 F.R.D. 418, 420 (D.D.C. 2002); In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 621–22 (D. Nev. 1998). If the conversation is for other purposes, whether it is privileged depends on the jurisdiction supplying the law. In general, however, there are two schools of thought: one refusing the privilege and one enforcing it.

The first school of thought has its origins in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). Hall holds that the fact-finding purpose of a deposition is undermined where an attorney shapes the witness’s testimony during private conferences or recesses. Moreover, because witnesses are not permitted to freely consult with their counsel at trial, Hall extends a similar prohibition to depositions, which are conducted under generally the same rules. Accordingly, unless for the purpose of determining privilege, Hall and its progeny allow a deposition witness to be examined about his off-the-record conversations with his counsel. In this regard, Hall takes a dim view of attorneys.

The second school of thought is often attributed to In re Stratosphere Corporation Securities Litigation. In re Stratosphere shares the concerns of Hall but finds that it goes too far in limiting conferences between an attorney and her counsel to the determination of privilege. Rather than focusing on the subject matter of the conference, In re Stratosphere focuses on its timing: if a question is pending, unless necessary for determination of privilege, neither the witness nor her counsel may avoid answering by seeking a recess. Otherwise, In re Stratosphere and its progeny apply the ordinary rules of privilege to communications during recess. To do otherwise would prevent an attorney “from making sure that his or her client did not misunderstand or misinterpret questions or documents, or attempt[ing] to help rehabilitate the client by fulfilling an attorney’s ethical duty to prepare a witness.” 182 F.R.D. at 621. In concluding that these off-the-record conversations would not frustrate a deposition’s fact-finding purpose, In re Stratosphere expresses a far more generous view of attorneys than Hall.

Rule 30(b)(6): Current Trends

Both Hall and In re Stratosphere predate current trends in Rule 30(b)(6) depositions that have added to both their frequency and complexity. It is likely, for example, that neither court anticipated that parties might designate third-party consultants on their behalf or be deposed about network architectures and the creation and storage of electronically stored information. Where Rule 30(b)(6) requires the organization (and, by extension, its attorney) to produce a witness with knowledge of the designated topics, however, the issue of privilege for off-the-record conversations takes on particular significance. In a “no-consultation” jurisdiction following Hall, an attorney whose client’s Rule 30(b)(6) designee cannot recall knowledge responsive to a particular topic is faced with a Catch-22: a failure of recollection will bind the organization, but an off-the-record conversation to refresh the witness’s recollection will be subject to discovery. In such a situation, Hall’s conception of the lawyer as an impediment to truth-seeking seems at odds with the practical realities of Rule 30(b)(6) practice.

Current Court Leanings

If courts have considered the tension between off-the-record “coaching” and an organization’s obligation to prepare a witness under Rule 30(b)(6), they have done so with great circumspection. In FedEx Corp. v. United States, the Western District of Tennessee came close to addressing the issue when it cited Hall for the proposition that, once sworn, a witness generally is subject to the same rules at her deposition as at trial. No. 08-2423, 2011 WL 2023297, at * 9 (W.D. Tenn. Mar. 28, 2011). The coaching at issue, however, took place during the deposition itself, and the court likely was influenced by both its frequency and egregiousness. In most cases, therefore, the subject of privilege for attorney-client communications during deposition recesses likely remains governed by a jurisdiction’s application of either Hall or In re Stratosphere.

Suggestions for the Examining Attorney

Given the potential consequences of ignorance, attorneys are well advised to learn in advance of any deposition regardless of whether the relevant jurisdiction follows Hall or In re Stratosphere. In either case, however, this article offers a few thoughts for an examining attorney.

First, inquire into conversations occurring on recess. Ask whether the witness spoke with anyone during the break and, more importantly, whether her answers changed as a result. These questions do not invade the privilege but will tend to keep the witness and her counsel honest and protect the record.

Second, note suspected “coaching” on the record. In Ngai v. Old Navy, the examining attorney learned that opposing counsel had been coaching the witness when he mistakenly sent her a text message saying, “You’re doing fine.” No. 07-5653, 2009 WL 2931282, at *2 (D.N.J. July 31, 2009). The examining attorney requested on the record that opposing counsel preserve his text messages and followed up with a letter seeking a court order requiring their disclosure. Few instances will be so obvious or capable of corroboration, but contemporaneous documentation will assist in presenting the matter to the court.

Third, document conferences taken while a question is pending. Both Hall and In re Stratosphere agree that an attorney may confer with his client while a question is pending only to determine the existence of a privilege. Moreover, in the case of such a conference, the witness’s attorney is to place its occurrence on the record together with its subject matter and the decision reached. Insisting on this procedure reduces the incentive for mischief.

Conclusion

Depositions are unpredictable enough in that they add a human element to discovery. A few minutes of research and a few lines of questioning can cut off potential problems before they occur and leave the well-prepared attorney free to focus on her client’s case.

Joseph V. Schaeffer is a senior attorney at Spilman Thomas & Battle, PLLC in Morgantown, West Virginia.

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