Because jurisdictions vary widely in their treatment of deposition break conferences, practitioners should not assume that conversations with clients during deposition breaks will be covered by attorney-client privilege.
In the October 12, 2023 Edition of The Legal Intelligencer, Edward Kang wrote “Jurisdiction Matters: Things to Consider Before Consulting With Clients During Depositions“.
During a deposition, the client gives an answer that suggests a misunderstanding of the question or only a partial recollection of facts. The attorney defending the deposition may want to confer with them as soon as possible, either to get the client back on track or to strategize and discuss how to respond more effectively to the deposing attorney. Doing so is not advisable, however, as in certain jurisdictions, the substance of their conversation may not be protected by the attorney-client privilege and may thus be discoverable during the deposition. Further, such questionable conduct could be deemed antithetical to the purpose of deposition: getting to the truth.
Attorney-Client Privilege and Its Purpose
The attorney-client privilege protects from discovery “confidential disclosures by a client to an attorney made in order to obtain legal assistance.” See Doe v. Schuylkill County Courthouse, 343 F.R.D. 289 (M.D. Pa. 2023) (citing Fisher v. United States, 425 U.S. 391 (1976)). The privilege applies to both the information the client gives to the attorney to obtain legal advice and the professional advice the attorney furnishes to the client. See Upjohn v. United States, 449 U.S. 383 (1981). The purpose of the privilege is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” See In re Teleglobe Communications, 493 F.3d 345 (3d Cir. 2007) (citing Upjohn, 449 U.S. at 389).
Though the oldest of the privileges accorded to confidential communications under common law, the attorney-client privilege is not absolute and may be waived under certain circumstances. Once waived, the attorney-client privilege cannot be reasserted. See United States v. Suarez, 820 F.2d 1158 (11th Cir. 1987). Moreover, because the attorney-client privilege “has the effect of withholding relevant information from the factfinder,” courts construe the privilege narrowly and apply it “only where necessary to achieve its purpose.” See In re Estate of McAleer, 248 A.3d 416 (Pa. 2021) (citing Fisher, 425 U.S. 391). This is particularly the case in the context of depositions and trials, where the objective is to uncover the truth. See Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).
Federal Rules of Civil Procedure on Depositions
Under the Federal Rules of Civil Procedure, courts have broad authority to control the discovery process, including depositions. Rule 26(c) expressly allows courts to enter orders to manage discovery in the interest of avoiding undue burden and expenses. Rule 30(c) sets out the basic rules governing attorney conduct in taking and defending depositions. It provides in relevant part that “[t]he examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence …” Fed. R. Civ. P. 30(c)(1). Rule 30(d)(3)(B) allows courts to limit the scope and manner of the deposition. Objections “must be stated concisely in a nonargumentative and nonsuggestive manner.” Fed. R. Civ. P. 30(c)(2). Moreover, Rule 30 expressly prohibits attorneys from instructing a deponent not to answer except “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion” to terminate the deposition or to limit its scope. This rule, however, does not specifically address whether and when an attorney may confer with a client during a deposition.
‘Hall v. Clifton Precision’ and a Split Among the Courts
In Hall v. Clifton Precision, a well-known case that practitioners cite either glowingly or with disdain, depending on whether they are taking or defending the deposition, the U.S. District Court for the Eastern District of Pennsylvania addressed this specific issue regarding an attorney’s conduct during a deposition and articulated a bright-line rule. In Hall, during a deposition, the deponent’s attorney repeatedly interjected and asked to confer privately with his client and to review a document before the client answered any further questions. The court in Hall found that such private conferences between a deponent and an attorney are prohibited, both during deposition and during breaks in the deposition. Instead, the attorney may only request a conference with the deponent for the sole purpose of deciding whether to assert a privilege. The court further held that to the extent that such conferences do occur, they are not covered by the attorney-client privilege, and the substance of the conference is “fair game” for inquiry by the deposing attorney to determine if witness coaching has occurred. While acknowledging the attorney’s important role in preparing a client for deposition, the court took the view that “once a deposition begins, the right to counsel is somewhat tempered by the underlying goal of our discovery rules: getting to the truth.” The court also grounded its no-consultation rule in Rule 30(c)’s instruction that “depositions generally are to be conducted under the same testimonial rules as are trials,” reasoning that during a deposition, as during a civil trial, witnesses may not confer at their pleasure with counsel during their testimony. The court found no meaningful distinction between a conference initiated by the deponent or by the attorney, or between a conference occurring during the deposition or during a recess, as all these scenarios pose a risk of potential witness coaching. Accordingly, the court held that it is improper for the attorney to confer with the deponent and discuss the substance of the testimony during the deposition or during recess.
Since the decision in Hall 30 years ago, its no-consultation approach has been widely accepted by district courts in Pennsylvania, and attorneys defending depositions should thus be extra-cautious when they choose to confer with deponents during depositions. See Plaisted v. Geisinger Medical Center, 210 F.R.D. 527, 533 (M.D. Pa. 2002) (applying the guideline that an attorney shall not confer with a deponent in private, off-the-record conferences during depositions or during breaks or recesses, except for the purpose of deciding whether to assert a privilege); Wise v. Washington County, 2014 U.S. Dist. LEXIS 29267, at 27 (W.D. Pa. Mar. 7, 2014) (“Judge Robert Gawthrop’s opinion in Hall v. Clifton Precision provides the legal standards for attorney conduct during an oral deposition”); Vnuk v. Berwick Hospital, 2016 WL 907714, at *4 (M.D. Pa. March 2, 2016) (holding that conferring with the deponent about the subject matter of the deposition during lunch and other breaks is wholly inappropriate, unprofessional, and if repeated, sanctionable); Dalmatia Import Group v. Foodmatch, 2016 WL 6135574, at *6 (E.D. Pa. Oct. 21, 2016) (prospectively ordering that “counsel will not communicate with deponents during breaks regarding the substance of their deposition testimony”); Peronis v. United States, 2017 WL 696132, at *2 (W.D. Pa. Feb. 17, 2017) (same).
In New Jersey, Hall’s no-consultation approach is not universally strictly followed. Some have adopted Hall’s no-consultation approach to conferences during depositions. See, e.g., Tramontano v. New Jersey Transit Rail Operations, 2023 WL 3248238 (D.N.J. May 4, 2023) (finding that an attorney’s conduct violated Rule 30(c) when the attorney engaged in an off-the-record conference with the deponent during a deposition break, not for the purpose of deciding whether to assert a privilege). Some courts have viewed Hall’s strict holding favorably but elected to employ a case-by-case, fact-dependent approach. See, e.g., In re PSE&G Shareholder Litigation, 726 A.2d 994, 997 (N.J. Super. Ct. 1998) (holding that there may be no discussions between the attorney and deponent during any break, while preserving the deponent’s right to confer with the attorney to prepare for the next day’s deposition).
Some courts have adopted an opposing approach to Hall’s, allowing private attorney-client conferences during deposition breaks so long as there is no question pending and finding that such communications remain privileged. See, e.g., In re Stratosphere Securities Litigation, 182 F.R.D. 614, 621 (D. Nev. 1998); McKinley Infuser v, Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001).
Local Rules on Depositions
Some jurisdictions have adopted local rules to address whether an attorney may confer with the deponent during depositions. For example, under New Jersey Court Rule 4:14-3(f), “once the deponent has been sworn, there shall be no communication between the deponent and counsel during the course of the deposition while testimony is being taken except with regard to the assertion of a claim of privilege, a right to confidentiality or a limitation pursuant to a previously entered court order.”
Some federal courts have taken a similar approach. For example, the U.S. District Court for the District of Delaware has adopted a local rule that explicitly addresses conferences during deposition breaks. Delaware Local Rule 30.6 provides, “from the commencement until the conclusion of deposition questioning by an opposing party, including any recesses or continuances, counsel for the deponent shall not consult or confer with the deponent regarding the substance of the testimony already given or anticipated to be given, except for the purpose of conferring on whether to assert a privilege or on how to comply with a court order.”
Because jurisdictions vary widely in their treatment of deposition break conferences, practitioners should not assume that conversations with clients during deposition breaks will be covered by attorney-client privilege. In some jurisdictions, these conversations could be considered improper witness-coaching and thus be subject to inquiry without the protection of the attorney-client privilege. Practitioners defending depositions in jurisdictions such as Pennsylvania, New Jersey and Delaware should be familiar with the latest case law and local rules and proceed accordingly. Out of an abundance of caution and in the spirit of pursuing the truth-seeking function, in general, practitioners should avoid speaking with their clients about the substance of their testimony once the deposition begins.
Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at firstname.lastname@example.org.
Reprinted with permission from the October 12, 2023 edition of “The Legal Intelligencer” © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.