June 18, 2020 Articles

Depositions: You Can’t Do That

The old practice of deposition obstruction has been rendered improper and potentially sanctionable.

By Michael Schwarz

Decades ago, even before the first computers, deposition practice was a game of obstruction. Some lawyers, who shall remain nameless (but we all know who they are!), would object to just about every question; and those objections would rattle on for pages and pages of the deposition transcript. The objections would coach the witness, instruct the witness not to answer, and obstruct the truth-finding process. The depositions became pretty much worthless when it came to resisting or moving for summary judgment or impeachment at trial. It was awful.

Then, in the summer of 1993, Judge Gawthrop issued the landmark case of Hall v. Clifton Precision. 150 F.R.D. 525 (E.D. Pa. 1993). This decision was a precursor to the 1993 amendments to the Federal Rules of Civil Procedure effective December 1, 1993. 1993 Amendments to the Federal Rules of Civil Procedure, 146 F.R.D. 401, 648–66 (1993). This was a massive revision to deposition practice, rendering the old practice of deposition obstruction improper and potentially sanctionable.

Attorney-Client Communications During a Deposition

Depositions are supposed to be similar to trial testimony but outside the presence of the court. Fed. R. Civ. P. 30(c)(1) (“The examination and cross-examination of a deponent proceed as they would be at trial. . . .”). The advisory committee’s notes for the 1993 amendment affirm that “counsel should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer.”

During depositions, there are breaks—and in the past sometimes the interrogating lawyer would say, “If you need to confer with your lawyer, just let me know, and we will take a break.” No longer. After all, at trial, the witness cannot raise his or her hand and say, “Judge, I would like to confer with my lawyer before answering the question.” Such a consultation generally won’t be allowed to happen; and if it does, the court will most likely try to lay a foundation that the need for a break is based on an assertion of a privilege.

Sixth Amendment Rights and Attorney-Client Privilege

What happens if, during the lunch break, the lawyer reminds the deponent of certain facts or circumstances that were omitted in the testimony? Are the conversations between the lawyer and the deponent during a break protected by the work-product doctrine or attorney-client privilege? Can those communications be explored at the deposition?

In Perry v. Leeke, 488 U.S. 272 (1989), the U.S. Supreme Court faced the issue of whether a trial court judge’s instruction that a criminal defendant not confer with his lawyer during a 15-minute break violated the defendant’s Sixth Amendment rights. Previously, the U.S. Supreme Court had ruled that criminal defendants may confer with their lawyers during the overnight break and that to deny criminal defendants that opportunity would violate their Sixth Amendment rights. Geders v. United States, 425 U.S. 80 (1976). The Perry Court wrote thus:                     

The distinction rests instead on the fact that when a defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is testifying. He has an absolute right to such consultation before he begins to testify, but neither he nor his lawyer has a right to have the testimony interrupted in order to give him the benefit of counsel’s advice.

488 U.S. at 281. The difference between Geders and Perry rests with the amount of time that had elapsed during the break and not that the witness was on the stand.

The holdings of Geders and Perry have migrated over to civil deposition practice. Once a deposition has started, the deponent has no right to confer with counsel except for the limited purpose of determining if a privilege should be asserted. BNSF Ry. Co. v. San Joaquin Valley R.R. Co., No. 1:08-cv-01086, 2009 WL 3872043, at *3 (E.D. Cal. Nov. 17, 2009). This prohibition extends not only to breaks taken during the deposition but also to discussions between counsel and the deponent over lunch. United States v. Philip Morris, Inc., 212 F.R.D. 418, 420 (D.D.C. 2002).

“[I]f an off-the-record conference occurs between the deponent and her counsel about a topic other than to discuss asserting a privilege, then the discussion is not protected by the attorney-client privilege and a ‘deposing attorney is [] entitled to inquire about the content thereof.’” Ngai v. Old Navy, No. 07-5653, 2009 WL 2391282, at *4 (D.N.J. July 31, 2009) (unpublished opinion) (quoting Plaisted v. Geisinger Med. Ctr., 210 F.R.D. 527, 533, 535 (M.D. Pa. 2002)) (emphasis added). This is so because once the deposition begins, “counsel is somewhat tempered by the underlying goal of discovery rules: getting to the truth.” Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993).

Conclusion

Getting to the truth is a difficult process, and, at times, the process runs counter to a lawyer’s obligations to the client. Nonetheless, there are limited exceptions to a lawyer’s zeal in protecting a client or a deponent. After all, no system of justice is worthy of such a name when it fails to foster getting to the unvarnished truth.  

Michael Schwarz is a solo practitioner in Santa Fe, New Mexico.


Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).