United States: Update To Our 2011 Post On When Counsel Can Confer With Their Own Witnesses During Depositions

Last Updated: May 22 2019
Article by James Beck

Of all the one-off posts that we've done, our post from 2011, " Depositions – When Can You Talk To Your Own Witness?," has probably garnered the most ongoing use by litigators generally. Both inside or outside of our firms, we get questions or comments about it probably about once every other month. That's a lot, considering how many of our posts seem to vanish without a trace.

Because that post has generated so much interest, we thought we'd update it. We'll start with repeating our conclusions from back then:

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 taken for unrelated reasons is more likely to be viewed as OK. Again, if you're willing to have the witness testify that no coaching occurred, so much the better.

Fourth, just as the weight of authority is against conferring with questions pending, once we get to overnight breaks, the weight has shifted decisively to such conferences being allowable. There's some contrary precedent, but not much.

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.

The obvious way to start the update was to look for post February, 2011 citations to the leading (if not necessarily most followed) decision on in-deposition consultations, Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). We also point out (as we did in 2011) that there is no necessarily "pro-plaintiff" or "pro-defense" position on this issue, so we present both sides of the law equally, according the importance we perceive in the cases.

Since our earlier post, one more state supreme court, Nevada's, has weighed in. Coyote Springs Investments, LLC v. Eighth Judicial Dist. Court, 347 P.3d 267, 270 (Nev. 2015), was oddly postured. No sanctions or additional discovery was sought after an attorney-requested in-deposition break between topics (but with no question pending) was quickly followed by the witness changing his testimony. Id. at 269. Instead, opposing counsel waited until trial (a bench trial) to inquire into what were claimed to be privileged communications. During the trial, the lower court found the privilege waived. Id. at 270. The conferring party sought an extraordinary writ. The Nevada Supreme Court found the absolute Hall rule was "unnecessarily restrictive." Id. at 273. Rather, Coyote Springs drew the line between conferring during unrequested deposition breaks (OK) and requesting a break to confer (mostly not OK):

[W]e hold that attorneys may confer with witnesses during an unrequested recess or break in a discovery deposition. Furthermore, we 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. We additionally hold that once the deposition proceedings resume after a private conference that is requested to determine whether to assert a privilege, 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. We stress that counsel must make a record of the confidential communications promptly after the deposition resumes in order to preserve the attorney-client privilege.

Id. (citations omitted). Because the testimony at issue involved a requested break, and did not concern a privilege issue, use of the disputed testimony about what transpired during the conference was not an abuse of judicial discretion. Id.

Chesbrough v. Life Care Centers, Inc., 2014 WL 861200 (Mass. Super. Feb. 14, 2014), is a state trial court opinion of exceptionally high quality. "[T]here was no artfully timed break-taking with either questions pending or clear lines of inquiry interrupted" during the Chesbrough deposition, but one "conference between [the witness] and his counsel . . ., which lasted just two minutes, [and] occurred during an unanticipated break requested by a different lawyer." Id. at *2. As one might guess from that description, no sanctionable conduct was found. The court refused to follow Hall, which was advanced for the rather extreme proposition that any conference during a deposition "amounted to impermissible coaching per se, and without more entitle[d the opponent] to pierce the attorney-client privilege that would otherwise attach to such communication." Id. Instead, construing the applicable Massachusetts rule (Rule 30(c)), the court held the in-deposition conference proper:

Defendant's counsel did nothing to violate either the provisions or purposes of Rule 30(c). . . . She did not interrupt the examination of her client, or do anything to interfere with the flow of opposing counsel's questioning. The break that occurred here was requested by a different attorney, and by all accounts had nothing to do with advice-seeking on the part of the deponent. There was no question pending at the time this break commenced, another circumstance suggestive of coaching not present in the case at bar.

Id. at *3. Chesbrough rejected an "expansive construction" of the rule, based on Hall, that would have "equate[d] all forms of lawyer-witness communication during the course of a deposition (and appurtenant breaks) with impermissible coaching. Id. While Hall might be "ground zero" on this issue, Chesbrough found some of its holdings radioactive:

[While] Hall has gained a modest following in the courts since its publication in 1993 . . ., the greater weight and better reasoned authority that has evolved in the area of lawyer-client conferences during depositions has come to reject Hall as an untenable and impractical interference with the attorney-client privilege and right to counsel. In its zeal to root out witness coaching from civil deposition practice, Hall prescribes a remedy now widely regarded as more destructive than the ill it seeks to cure. . . . [T]he rules of Hall sweep too broadly to be adopted in this jurisdiction.

2014 WL 861200, at *5 (citations omitted). Instead, Chesbrough imposed a more flexible set of rules for dealing with situations suggesting improper in-deposition witness coaching:

[I]f a deposing lawyer comes to believe in good faith that an opposing counsel has improperly coached a witness during the course of a deposition . . . then the lawyer . . . may in this circumstance 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. . . . The Court believes that the availability of such recourse will in most circumstances deter bad behavior by lawyers defending client depositions.

Id. at *8 (emphasis original). The most commonly sanctioned conduct – conferring "while a deposing lawyer's question is pending" and "initiat[ing] a break or recess for the purpose of conferring about the substance of the witness's testimony . . . in the middle of a deposing lawyer's line of questioning" – were prohibited, id. at *9, but all other in-deposition breaks were allowed, subject to the anti-coaching procedure outlined above. Id.

Other cases involving the propriety of in-deposition conferences subsequent to our 2011 post are as follows:

Finding in-deposition conference improper

Demonstrably, counsel conducting depositions in federal courts in Pennsylvania, where Hall originated, should be extra careful when they elect to have conferences with deponents during the course of depositions. See Peronis v. United States, 2017 WL 696132, at *2 (W.D. Pa. Feb. 17, 2017) (order prospectively applying Hall to deposition conduct); Dalmatia Import Group., Inc. v. Foodmatch, Inc., 2016 WL 6135574, at *6 (E.D. Pa. Oct. 21, 2016) (prospectively ordering that "Counsel will not communicate with deponents during breaks regarding the substance of their deposition testimony"); Vnuk v. Berwick Hospital Co., 2016 WL 907714, at *4 (M.D. Pa. March 2, 2016) ("speaking with [the client] about the subject matter of the deposition during lunch and other breaks, is wholly inappropriate, unprofessional, and − if it occurs again – sanctionable"; counsel also passed notes and whispered to client during questioning). But strict application of in-deposition conferences is by no means limited to Pennsylvania. See New Age Imports, Inc. v. VD Importers, Inc., 2019 WL 1427468, at *3 (C.D. Cal. Feb. 21, 2019) (motion to compel second deposition of witness due to in-deposition conference was "substantially justified" as to support an award of costs); Horowitz v. Chen, 2018 WL 4560697, at *3-5 (C.D. Cal. Sept. 20, 2018) (attorney and client "repeatedly left the room together while a question was pending"; costs and redeposition ordered); Bracey v. Delta Technical College, 2016 WL 918939, at *1-2 (N.D. Miss. March 9, 2016) (in-deposition conference resulted monetary sanction); Plaquemines Holdings, LLC v. CHS, Inc., 2013 WL 1526894, at *6 (E.D. La. April 11, 2013) ("counsel . . . took several 'breaks' during the deposition [and] . . . during one of these 'breaks' he spoke briefly with his client"; redeposition ordered because "the conduct is impermissible under Rule 30"); South Louisiana Ethanol, L.L.C. v. Fireman's Fund Insurance Co., 2013 WL 1196604, at *7 (E.D. La. March 22, 2013) ("unilaterally taking a 'break' in the deposition, and speaking to [the deponent] outside the deposition" was "clearly inappropriate"). And a special note about Abu Dhabi Commercial Bank v. Morgan Stanley & Co., 2011 WL 4526141, at *8 (S.D.N.Y. Sept. 21, 2011), adopted, 2011 WL 4526137 (S.D.N.Y. Sept. 29, 2011), and NXIVM Corp. v. Cote, 2011 WL 3648852, at *2 (N.D.N.Y. Aug. 18, 2011). They also followed a strict Hall standard, but cases below discuss, the local New York federal court rules have subsequently been relaxed, and as a result of the local rules change, these two are of questionable validity.

In the middle

Pia v. Supernova Media, Inc., 2011 WL 6069271, at *3 (D. Utah Dec. 6, 2011) (deponent "may assert the attorney-client privilege concerning the conversations between [him] and his counsel that occurred while on long breaks while no question was pending, but must answer questions about conversations that occurred during breaks while a question was pending"); Pedraza v New York City Transit Authority, 2016 WL 270825, at *11-12 (N.Y. Sup. Jan. 20, 2016) (while 22 NYCRR 221.3 "prohibits the very type of interruption that plaintiff's counsel sought," and is not limited to breaks with a question pending, sanctions denied because no "tactical advantage" was sought).

Not finding in-deposition conference improper

Unlike the Hall-based decisions, the more liberal cases are not concentrated in certain jurisdictions, but seem to come from all over. Pain Center, LLC v. Origin Healthcare Solutions LLC, 2015 WL 4548528, at *5 (S.D. Ind. July 28, 2015) ("conferring with a deponent during a recess . . . does not interfere with the fact-finding purpose of a deposition); Cannon v. Time Warner NY Cable LLC, 2015 WL 2194620, at *1 (D. Colo. May 7, 2015) ("there is no bar on attorney consultation with a client during the client's deposition, as a general matter − so long as no question is pending"); Gavrity v. City of New York, 2014 WL 4678027, at *2 (E.D.N.Y. Sept. 19, 2014) ("The rules of this Court do not prohibit discussions between counsel and client during a deposition other than when a question is pending") (citing E.D.N.Y. Loc. Civ. R. 30.4); Few v. Yellowpages.com, 2014 WL 3507366, at *2 (S.D.N.Y. July 14, 2014) (rejecting Hall rule under New York law; "The current rule . . . narrows the restriction on counsel to conferencing during the pendency of a question, a change that obviously represents a deliberate decision to alter the scope of the prohibition"); Murray v. Nationwide Better Health, 2012 WL 3683397, at *4-5 (C.D. Ill. Aug. 24, 2012) (a "blanket prohibition on defense counsel having a private conference with [his client] during the deposition is overly broad"; "defense counsel may have a private conference with [a client] during a recess that counsel did not request (and so long as a question is not pending)" and during other unrequested breaks); Ginardi v. Frontier Gas Services, LLC, 2012 WL 13028126, at *2 (E.D. Ark. Jan. 6, 2012) (in-deposition break to locate documents with no question pending not sanctionable; "Hall fails to recognize the importance of the attorney-client privilege"); Perrymond v. Lockheed Martin Corp., 2011 WL 13269787, at *3 (N.D. Ga. Feb. 18, 2011) (sanctions denied; "Plaintiff has not explained that [counsel's] bathroom break comment thwarted her from pursuing a line of questions or otherwise interfered with her examination").

Almost all of on-point precedent, whether inclined or disinclined to prohibit all in-deposition conferences, involved communication between attorneys and their clients. But what about in-deposition conferences between an attorney and a paid expert witness? Different rules apply, held Callahan v. Toys "R" Us-Delaware Inc., 2016 WL 9686055 (D. Md. July 15, 2016). "[C]ommunications between attorneys and experts . . . are protected under an extension of the work-product doctrine." Id. at *3. "Counsel's choice to confer with [his expert] during the deposition break does not evince a conscious disregard of the advantage of keeping the defense strategy private," so work product protection was not waived. Id. However:

Counsel's continued insistence that the specific communications here are protected by the work-product doctrine essentially concedes their strategic nature, evidencing a danger for the precise type of witness coaching from which attorneys should refrain while witnesses are under oath. The Court must thus conclude that the communications were improper under Rule 30.

Id. at *3. Thus, Callahan imposed a different sanction – striking all of the expert's deposition testimony that followed the in-deposition conference at issue. Id. at *4. While funny business during expert depositions is less likely to waive a privilege, Callahan demonstrates the ingenuity of courts in addressing in-deposition conferences that are thought improper.

Looking at all this, we think the continued development of the law only reinforces our 2011 conclusions. Taking a break to confer with a client while an unanswered question is pending is asking for trouble. That will almost always draw a sanction. Requesting a break without a question pending is also dangerous, although a break at a logical point where the previous topic of questioning is completed will be looked upon more kindly. Except in Pennsylvania, attorney-deponent consultations, at naturally occurring breaks in the deposition, have been pretty much OK. Conferences between attorneys and deponents during overnight (or longer) breaks, are by now almost universally allowed, save an occasional, possibly anachronistically drafted court rule.

* * * *

Finally, under the heading "only in California," one party actually tried to sue the other over alleged in-deposition coaching consisting of, inter alia, conferring with the witness during questioning. See Goodwin v. Pagano, 2015 WL 9486589, at *11 (Cal. App. Dec. 29, 2015) (affirming dismissal; "local court guideline" does not create a private cause of action).

This article is presented for informational purposes only and is not intended to constitute legal advice.

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