Litigation: Protecting attorney–corporate witness consultations during deposition breaks

Counsel often fail to consider how to handle witness consultations during deposition breaks and how to prepare their corporate witnesses for break-time discussions

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?

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.

Contributing Author

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Todd Presnell

Todd Presnell is a partner in the Nashville office of Bradley Arant Boult Cummings, LLP. He is licensed in Georgia and Tennessee and represents...

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