It is a deposition question that too often surprises lawyers and corporate-witness deponents. Upon return from a water or lunch recess, the deposing lawyer asks the witness: “So, tell me what you and your company’s lawyer discussed during the break?” Can the deposing lawyer ask that? Does the defending lawyer have an attorney-client privilege objection?
In-House and outside counsel focus their deposition preparation on reviewing the notice-of-deposition topics, selecting the most appropriate corporate employee for the deposition task, and preparing that witness with the boilerplate deposition “dos and don’ts.” And while many lawyers defending depositions see every break as an opportunity to consult with the witness, they neglect to consider whether the privilege covers these in-deposition consultations and, importantly, to prepare the witness how to answer an out-of-the break question about those consultations.
Unfortunately, there is no uniform rule on whether lawyers may have privileged conversations with witnesses during deposition breaks. Some jurisdictions prohibit all during-the-break consultations except when necessary to assert an evidentiary privilege. Other jurisdictions reject this draconian rule for the more practical approach of permitting break-time discussions except when a question is pending.
In my recent article, Protecting Attorney-Corporate Witness Consultations During Deposition Breaks, published by Inside Counsel, I explore the various rules on this issue and provide practical tips for preparing lawyers and witnesses for this inevitable happening.
You may access the article at this link. How does your jurisdiction–state or federal–handle this situation? Place your comments in this post–perhaps we can gather the local rules, judicial rulings, and local practices so that others may find answers in a single forum.
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