When Can You Talk to Your Own Client at Deposition?
Most litigators have encountered the situation where their client has “gone off the rails” at his or her deposition. There can be a strong pull to want to rehabilitate or reassure the client during a break or recess, or even request a break for that purpose. But is such conduct ethical? And will attorney-client communications during breaks or recesses in depositions be discoverable by opposing counsel?
There is a split of authority on this issue. In one of the seminal cases, the Eastern District of Pennsylvania held that private attorney-client conferences were prohibited both during the deposition and during deposition breaks, lunches, and overnight recesses. Hall v. Clifton Precision, 150 F.R.D. 525, 529–531 (E.D. Pa. 1993). The Hall court permitted attorney-client deposition conferences only for the purpose of determining whether to assert a privilege–conferences for any other purpose were not privileged, at least as to what was said by the lawyer to the witness. Id. Such conferences were thus “fair game” for inquiry at the deposition to discover possible witness coaching. Id. at 529.
The Hall court based its decision, in part, on F.R.C.P 30(c)(1), which requires examination and cross-examination of a deponent to proceed as they would at trial. The court noted that though a lawyer has a right, if not a duty, to prepare a witness, once a witness begins his or her testimony – whether at trial or in deposition – “that witness is on his or her own.” Id. at 528.
Other courts have been more lenient in their treatment of conferences during breaks and overnight recesses. In 1998, the United States District Court for the District of Nevada agreed in part with Hall, holding that when there was a question pending, neither the deponent nor his or her attorney could interrupt the proceeding to confer about the question, the answer, or about any document, except to assert a claim of privilege. In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 621 (D. Nev. 1998). The Stratosphere court, however, declined to adopt all of Hall’s restrictions, holding that an attorney – during a break or recess that he or she did not request – was not precluded “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.” Id. at 621. According to the Stratosphere court, such conferences did not waive the attorney-client privilege. Id. at 622 (citing Odone v. Croda Int’l PLC, 170 F.R.D. 66 (D.D.C. 1997).
Another oft-cited case is United States v. Phillip Morris, Inc., 212 F.R.D. 418, 420 (D. D.C. 2002), which applied yet another standard. In Phillip Morris, the United States District Court for the District of Columbia held that there was no categorical prohibition on attorney-client communications after a deposition had commenced. Id. at 420 (citing Odone, 170 F.R.D. at 68). Under the circumstances presented, however, the court found that prohibiting contact between the deponent and his attorney during deposition breaks was appropriate and customary during a single day of questioning. Id. The court then extended that prohibition to situations where the deposition was continued on a day-to-day basis with no intervening passage of time. Id. Due to concerns of unduly infringing the attorney-client relationship, however, the court held that the prohibition on attorney-client communications did not apply when the deposition could not be held on consecutive days.
Neither the Virginia Supreme Court nor the Fourth Circuit has directly addressed whether or not attorney-client conferences during deposition breaks and recesses are permissible and, if so, whether they are discoverable. The Hall case, however, has been favorably cited by the Eastern District of Virginia in two recent opinions. In 2010, the Eastern District held that once a deposition begins, “there is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers.” Francisco v. Verizon South, Inc., 756 F. Supp. 2d 705, 712 (E.D. Va. 2010) (quoting Hall, 150 F.R.D. at 528). One year later, in E.I. du Pont de Nemours & Co. v. Kolon Indus., 277 F.R.D. 286 (E.D. Va. 2011), the court favorably quoted Hall when holding that “one of the main purposes of the discovery rules, and the deposition rules in particular, is to elicit the facts before the trial and to memorialize witness testimony before the recollection of events fade or ‘it has been altered by… helpful suggestions of lawyers.'” Id. at 297 (quoting Hall, 150 F.R.D. at 528).
So what should litigators do in Virginia? Though there is no definitive case law from Virginia state or federal courts, the best practice appears to be to avoid attorney-client communications – particularly regarding the subject matter of the witness’s testimony – during the pendency of a deposition. While an attorney may request a break during a deposition to ascertain and protect matters of privilege, requesting breaks or conferences to rehabilitate or coach witnesses could be problematic. As always, an ounce of prevention is worth a pound of cure: there is no substitute for diligent witness preparation prior to testimony, either in a deposition or at trial.