INTRODUCTION
Civil depositions usually include periodic breaks to stretch, refill drinks, use the restroom, or eat lunch.1 During these breaks, the witness and her counsel often want to discuss the testimony.2 Since the COVID-19 pandemic began, many depositions have shifted to Zoom or other remote platforms.3 In remote depositions, attorneys and clients may be tempted to communicate more frequently by text messages or instant messages, even while questions are pending.4 Although communications between an attorney and witness-client in the course of a deposition are common, many attorneys do not have a clear understanding of the permissible bounds for the communications.5 That is for good reason: the rules and case law do not provide clear guidance.
In the 1980s and 1990s, some federal district courts began imposing "no-consultation" rules through orders, standing orders, and local rules.6 Although the parameters varied, "no-consultation" rules imposed significant restrictions on an attorney's ability to communicate with a witness-client during a deposition.7 Penalties for violating these rules included monetary sanctions8 and waiver of the attorney-client privilege.9 Since this trend began, federal courts across the country have taken a wide range of approaches to address conferences between attorneys and their witness-clients during a deposition.10
Limitations on private conferences are rarely addressed on appeal, and the variance in federal district court approaches has increased over time.11 For example, in recent years, one court ordered a complete ban on all conferences between an attorney and witness-client during deposition breaks, stating that any conferences that occurred in violation of the ban would not be protected by privilege and would be a proper subject for inquiry by the deposing counsel.12 Another court found that an attorney improperly conferred with his witness-client during a break requested by the interrogating attorney but declined to impose sanctions for the improper conference.13 Meanwhile, a third court declined to enter any restrictions on conferences between an attorney and witness-client between nonconsecutive deposition days, except when a question was pending.14
The significant variance in the case law raises a serious concern for counsel and litigants in view of the important rights involved, such as the attorney-client privilege and the right to counsel.15 Those concerns only ncrease when attorneys consider the competing ethical considerations at play. For example, attorneys have the right, if not an ethical duty, to prepare their witness-clients before a deposition,16 but attorneys are never permitted to "coach" a witness by telling the witness what to say.17 Some courts have suggested that the concern about unethical "coaching" is so great during a deposition that no conferences should be permitted at all.18 But by placing the "coaching" concern as paramount, strict "no-consultation" rules give rise to other ethical concerns, such as how an attorney may best comply with his ethical duty to remonstrate confidentially with the client if he believes the client has testified falsely.19
Footnotes
1. A. Darby Dickerson, The Law and Ethics of Civil Depositions, 57 MD. L. REV. 273, 342–43 (1998).
2. Id. (observing that, "[b]ecause most attorneys use private conferences, no one wants to complain too loudly").
3. See, e.g., Suzanne Quinson, Depositions: Is the Future Remote?, PLANET DEPOS (Jan. 19, 2022), https://www.jdsupra.com/legalnews/depositions-is-the-future-remote-1473803/ [https://perma.cc/7AVQ-845C] (describing the results of a survey in summer 2021 assessing law firms' attitudes toward remote depositions).
4. See, e.g., Ngai v. Old Navy, No. 07-5653, 2009 WL 2391282, at *4–5 (D.N.J. July 31, 2009).
5. See Dickerson, supra note 1, at 342.
6. See David H. Taylor, Rambo as Potted Plant: Local Rulemaking's Preemptive Strike Against Witness-Coaching During Depositions, 40 VILL. L. REV. 1057, 1062–70 (1995); Jean M. Cary, Rambo Depositions Revisited: Controlling Attorney-Client Consultations During Depositions, 19 GEO. J. LEGAL ETHICS 367, 374–86 (2006); Joseph R. Wilbert, Note, Muzzling Rambo Attorneys: Preventing Abusive Witness Coaching by Banning Attorney-Initiated Consultations with Deponents, 21 GEO. J. LEGAL ETHICS 1129, 1131– 37 (2008).
7. See, e.g., Hall v. Clifton Precision, 150 F.R.D. 525, 531–32 (E.D. Pa. 1993).
8. See, e.g., BNSF Ry. Co. v. San Joaquin Valley R.R. Co., No. 1:08-cv-01086-AWI-SMS, 2009 WL 3872043, at *4 (E.D. Cal. Nov. 17, 2009).
9. See, e.g., Hall, 150 F.R.D. at 532.
10. See infra Parts I, II.
11. See infra Parts I, II.
12. See Peronis v. United States, No. 2:16-cv-01389-NBF, 2017 WL 696132, at *2–3 (W.D. Pa. Feb. 17, 2017).
13. Gay v. City of Rockford, No. 20 CV 50385, 2021 WL 5865716, at *3–4 (N.D. Ill. Dec. 10, 2021).
14. Or. Laborers Emps. Pension Tr. Fund v. Maxar Techs. Inc., No. 1:19-cv-00124-WJM-SKC, 2022 WL 684168, at *2–3 (D. Colo. Mar. 8, 2022).
15. As discussed in Part III.C, infra, courts uniformly seem to accept that clients in civil cases have a right to hired counsel, although the authorities disagree on whether this is a constitutional right under the Fifth Amendment's Due Process Clause. Compare Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1118 (5th Cir. 1980) (suggesting that civil litigants have a Fifth Amendment right to hired counsel), with Doe v. Dist. of Columbia, 697 F.2d 1115, 1119–20 (D.C. Cir. 1983) (recognizing that "every litigant has a powerful interest in being able to retain and consult freely with an attorney" while stating, "we need not elevate to constitutional status the right to the aid of counsel").
16. Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993).
17. In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 621 (D. Nev. 1998).
18. Hall, 150 F.R.D. at 528.
19. MODEL RULES OF PROF'L CONDUCT R. 3.3 (2018) [hereinafter MODEL RULES]; see also DeAngelis v. Countrywide Home Loans, Inc. (In re Hill), 437 B.R. 503, 543–46 (Bankr. W.D. Pa. 2010) (relying on Model Rule 3.3 and Comment 10 in ordering an attorney to show cause why he should not be personally sanctioned for presenting at trial false deposition testimony from a client representative); infra Part III.D.
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Originally published by Georgetown Journal of Legal Ethics.
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