Are Deposition Breaks Privileged?

Attorneys should proceed with caution when consulting with a client during deposition breaks. Whether it be a hospitality break, for lunch, or for an overnight adjournment, there is room for trouble when a client and attorney discuss aspects of an ongoing deposition. Depending on the jurisdiction, communication between attorney and client may not be considered privileged and may be fodder for deposition questioning.

One of the more oft-cited cases on the topic of client consultation during deposition breaks is Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), in which the EDPA concluded that there was no support for the position that an attorney and client may confer “at their pleasure” during the client’s deposition.

According to the court:

“A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers.”

However, the Hall court did recognize a limited exception when a conference is requested for the sole purpose of deciding whether to assert a privilege.

Not all jurisdictions agree with Hall. By one account, decisions out of New Jersey and DC suggest that a case-by-case, fact-dependent approach is most suited to address the issue. SeeIn re PSE & G Shareholder Litigation, 320 N.J. Super. 112 (N.J. Super. Ct. 1998); Odone v. Croda Intern. PLC, 170 F.R.D. 66 (D. D.C. 1997).

Other jurisdictions allow a witness to confer with counsel without fear of repercussion. See In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 620 (D. Nev. 1998) and Haskell Co. v. Georgia Pacific Corp., 684 So.2d 297, 298 (Fla. Ct. App. 1996).

Although the law differs by jurisdiction, the following may serve as a general guide:

  • An attorney can expect trouble when conferring with a client while a question is pending, unless there is an issue of privilege;
  • Taking a break during questioning for the sole purpose of conferring with the deponent may be viewed unfavorably by the court; and
  • Conferring over lunch or other extended breaks is less likely to draw fire particularly if the witness can testify that no coaching occurred.

In light of the foregoing, attorneys will be well-served by reviewing the applicable rules in the jurisdictions in which they practice to avoid the possibility that conversations with clients during deposition breaks become evidence at trial.