It’s a scenario that all trial lawyers are familiar with. Your client is testifying at deposition. She gets a little confused and her testimony reflects it. After a line of questioning concludes, you request a break, leave the room with your client and confer. When the deposition resumes, your client changes her testimony, perhaps significantly. At the deposition –or even later, at trial — opposing counsel demands disclosure of your private conversation with your witness, and asserts that it is not privileged. Is it?
Courts are all over the map on the question of lawyer-client conferences during deposition breaks while no question is pending — and under what circumstances those communications are privileged. Some courts have issued guidelines that essentially preclude conversations between counsel and a witness from the time the deposition starts until trial, except to discuss whether to exercise a privilege — which seems both unrealistic and unnecessary.
Last week the Nevada Supreme Court weighed in with an opinion, and held in Coyote Springs Investment v. Eighth Judicial District, that lawyers may confer with witnesses during requested recesses in depositions only to determine whether to assert a privilege in response to a question. And for the lawyer-client discussions during those conferences to be privileged, counsel must state on the record:
- the fact that a conference took place;
- the subject of the conference; and
- the result of the conference.
Coyote Springs involved a dispute over fees owed upon termination of a lease. At deposition, the property owner testified about the negotiation of lease term sheets and his understanding of the lease termination provisions. After those questions, the deponent’s counsel suggested a break. Opposing counsel objected to any discussion during the break about the questions the deponent had been asked. The deponent and his counsel talked privately, and when questioning resumed, the deponent repudiated his previous testimony on a material, contested issue of fact.
At the trial, overruling an objection, the court permitted opposing counsel to cross-examine the property owner about what was discussed with counsel during the deposition break conference, “given the timing of the communication between counsel and the witness.” The state supreme court denied the subsequent petition for a writ of prohibition or mandamus challenging the trial court’s order.
Patterning its reasoning on a Nevada district court case, the supreme court in Coyote Springs agreed that totally precluding counsel and a witness from communicating once a deposition begins infringes unnecessarily on a party’s right to counsel. At the same time, the court agreed that the questioner is entitled to have the witness answer the questions, not counsel, and that the witness shouldn’t seek direction from counsel about how to answer. The state supreme court attempted to strike a balance, but its holding is still fairly restrictive in permitting conferences during requested breaks solely for the purpose of deciding whether to claim a privilege against answering, and in requiring a record to be made in order to shield the discussion itself.
Courts take a variety of approaches to this question. Compare In re Flonase Antitrust Litig., 723 F. Supp. 2d 761 (E.D. Pa. 2010) (attorney-client privilege protected conferences during deposition breaks) with The Haskell Co. v. Georgia Pacific Corp., 684 So. 2d 297 (Fla. App. 1996) (no attorney-client privilege for conferences during deposition breaks); see also Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993) (prohibiting conferences between witness and counsel both during the deposition and during recesses). A good 2006 law review article collects the older cases on the issue.
Because of the variations in outlook on the issue of privilege for deposition break consultations that are taken when no question is pending, you need to be aware of your jurisdiction’s law, and hit the books as necessary to navigate the complexities.