Clients often dread testifying at a deposition and, in response, attorneys may attempt to comfort them by offering words of encouragement or helpful suggestions during breaks. A recent ruling by a New Jersey federal court -- in Chassen v. Fidelity National Title Insurance Co., No. 09-291 (D.N.J. July 21, 2010) -- confirms, however, that such conduct comes at a price. That is, the opposing party may discover the substance of those communications.

The defendants, in Chassen, asked the court to order the disclosure of those communications between the plaintiff and her attorney during a deposition recess. Specifically, the defendants sought to continue the plaintiff's deposition to ask her about her conversations with her attorney. The defendants also sought an order precluding the plaintiff's counsel from further discussing testimony during breaks, and an award of fees and expenses in connection with the filing of the motion and the continued deposition of the plaintiff. In opposition to the motion, the defendants claimed that any such communications were protected by the attorney-client privilege and should not be ordered disclosed.

The trial court, citing Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993), held that "[d]uring a civil trial, a witness and his . . . lawyer are not permitted to confer at their pleasure during the witness's testimony. . . The same is true at a deposition." The court noted that although Hall is not universally followed in all jurisdictions, the District of New Jersey, in Ngai v. Old Navy, No. 07-5653, 2009 WL 2391282 (D.N.J. July 31, 2009), restricted attorney-client conferences once a deposition has commenced. The court provided that "counsel and witness are prohibited from engaging in private, off-the-record conferences during any breaks in a deposition, except for the purpose of deciding whether to assert a privilege." Indeed, if such communications occur, the court provided that the deposing attorney may "inquire about the specific content of those communications to ascertain whether any witness coaching has occurred."

The plaintiff argued that "an attorney cannot be penalized for utilizing a recess that he did not request to learn whether his client misunderstood any deposition questions." The court disagreed, opining that a witness should ask the deposing lawyer for further clarification if necessary. Although a client has the right to counsel, such right is "somewhat tempered by the underlying goal of our discovery rules: getting to the truth."

The court allowed the re-deposition of the plaintiff, but limited it to questioning about communications during a specific break where defendants noted that improper behavior occurred. The court cautioned the plaintiff's counsel to be mindful of this ruling in future depositions, but declined to award the defendants' attorneys their fees and costs incurred in connection with their motion and the continued deposition.