In-house counsel should be and most often are heavily involved in selecting and preparing corporate witnesses for their depositions. Working with outside litigation counsel, in-house attorneys review the notice-of-deposition topics, select the most appropriate corporate employee for the deposition task, and prepare the employee by reviewing documents and providing her with the boilerplate deposition “dos and don’ts.”
But many in-house and outside counsel fail to thoroughly consider how to handle witness consultations during deposition breaks and, importantly, how to prepare their corporate witnesses for break-time discussions. Several questions arise when this situation occurs: may counsel consult with the corporate witness during a routine break, when a question is pending, or when needed to assert a privilege? And how should the corporate witness and corporate attorney respond when asked divulge their break-time conversations?
Duty to Prepare and Attorney–Client Privilege
Lawyers have an ethical duty to prepare a witness for her deposition. See Model Rule 1.1; Christy v. Pennsylvania Turnpike Comm’n. And lawyers have an ethical duty to keep their client’s information confidential. Model Rule 1.6. The attorney–client privilege further protects communications between corporate employees and the company’s in-house and outside lawyers where the communications are confidential, made for the purposes of the attorney rendering legal advice, and fall within the scope of the employee’s work-related duties. See Upjohn Co. v. United States.
Heeding these rules and maxims, lawyers routinely talk with their deponent-witnesses during deposition breaks. These lawyer–witness conversations may range from friendly reminders about deposition strategies and techniques to substantive, testimony-related discussions. Many lawyers believe—with little thought—that their conversations are privileged and beyond challenge. But this belief provides false confidence, rendering corporate witnesses unprepared when the deposing lawyer’s first post-lunch question is: “So, what did you and your lawyer discuss during the break?”
Case Law, Rules, and Confusion
There is no uniform rule whether lawyers may consult with witnesses during deposition breaks and, correlatively, whether the deposing lawyer may ask the witness to divulge her during-the-break attorney discussions. A leading case on the subject is Hall v. Clifton Precision, where the court barred private conferences between lawyer and witness, even during “the fortuitous occurrence of a coffee break, lunch break, or evening recess.” Under the Hall rule, a corporate witness may confer with counsel to determine whether to assert a privilege, but otherwise may not discuss her deposition testimony during breaks. Importantly, though, Hall allowed deposing counsel to question the witness about during-the-break attorney discussions, but did not address whether corporate counsel could assert the attorney–client privilege to this line of questioning.
While some courts follow the Hall rule, others have soundly rejected it. The leading opposition case is In re Stratosphere Corp. Sec. Litig., where the court held that Hall “goes too far” and declined to adopt its “strict requirements.” The Stratosphere court prohibited attorney–witness conferences while a question is pending, but permitted these consultations during normal, routine deposition breaks. And the court ruled that holding during-the-break conferences does not waive the attorney–client privilege.
Several federal and state courts follow the Stratosphere reasoning while others cling to the strict Hall approach. Some federal courts implement their preferences by local rule while many states choose to include the topic in their civil procedure rules.
With the varying rules and approaches, what can in-house and outside counsel do to gain certainty and properly prepare the corporate witness for this inevitable deposition dispute?
- Know your jurisdiction or judge’s practice regarding during-the-break deposition conferences. Judges within the same federal district often disagree on the preferred approach, so learning your court’s preference, whether in a Local Rule or pursuant to an unannounced practice, is critical. Don’t wait until the discovery dispute arises following the first deposition break.
- Address at Case Management Conference. In jurisdictions lacking a concrete rule, and there are several, address the matter at the Case Management Conference or otherwise seek a ruling prior to the beginning of depositions.
- Courts universally agree that a lawyer may not stop a deposition mid-question to confer with the witness unless to assert a privilege. Lawyers should refrain from this conduct regardless of jurisdiction or the lack of prescribed rules.
- Conversely, courts universally permit counsel to confer with witnesses for purpose of asserting a privilege or complying with a protective order governing confidential information. Lawyers should stand ready to assert these objections.
- Lawyers should refrain from coaching a witness—defined as directly or indirectly telling a witness what to say—during a deposition break even if conferences are permitted. Conversations about the witness’s demeanor, answering techniques, and other deposition preparation strategies are fine, but don’t cross the line.
- In jurisdictions prohibiting during-the-break conferences, lawyers should nonetheless assert an attorney–client privilege objection if the deposing lawyer asks the witness about the consultation. While many courts prohibit conferences as a matter of procedure, few have confronted the privilege issue in this context. Failing to assert the privilege may result in waiver.
Prepare your corporate witnesses for this mini-battle within the deposition war. While lawyers certainly should know how to handle the situation beforehand, often we forget to alert our witnesses to the issue.