Thursday, February 10, 2011

Depositions - When Can You Talk To Your Own Witness?

We had the issue of when a lawyer can, and can’t, confer with his/her own witness during a deposition come up recently in one of our cases.  It caused a bit of scrambling since – typically – it came up in the middle of a deposition, so now that the issue is behind us in this particular case, we thought we’d blog about it

Unlike a lot of the stuff we talk about here, this issue is one that, depending on the circumstances, we could easily find ourselves on either side.  That means we don’t have a particular axe to grind, and we’re more concerned with knowing when we’re on solid ground (either conferring or objecting to same), and when we’re likely to run into problems.

Well, the grand-daddy of all cases on this question is from right here in our back yard in the Eastern District of Pennsylvania, called Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), written by the late Judge Robert Gawthrop (also an accomplished singer and actor).  Hall involved one common situation – where the deponent (that’s the guy answering the questions, for you non-lawyers) and his lawyer stopped an ongoing deposition to confer amongst themselves.  Indeed, one of these conferences occurred while there was a question pending (again, for non-lawyers that means after the question was asked but before it was answered).  The side taking the deposition objected to these conferences, and the matter was brought before Judge Gawthrop.

To use another technical term, Judge Gawthrop went ballistic (not all that uncommon with him) – and the Hall opinion was the result.  It probably didn’t help that the conferring attorney took a rather extreme position, “that an attorney and client have the right to confer with one another at any time during the taking of the client's deposition.” 150 F.R.D. at 526 (emphasis ours).

Judge Gawthrop laid down some law – at least as he saw it.

  • “[A] lawyer and client do not have an absolute right to confer during the course of the client's deposition.”  Id. at 528.
  • “[P]rivate conferences . . . tend, at the very least, to give the appearance of obstructing the truth.”  Id.
  • “To allow private conferences initiated by the witness would be to allow the witness to listen to the question, ask his or her lawyer for the answer, and then parrot the lawyer's response.”  Id.
  • “These rules also apply during recesses. . . .  Private conferences are barred during the deposition, and the fortuitous occurrence of a coffee break, lunch break, or evening recess is no reason to change the rules.”  Id. at 529.
  • “To the extent that such conferences do occur . . . [they] are not covered by the attorney-client privilege, at least as to what is said by the lawyer to the witness. Therefore, any such conferences are fair game for inquiry by the deposing attorney to ascertain whether there has been any coaching and, if so, what.  Id. at 529 n.7 (dictum).
  • The only exception is a conference to determine if a privilege needs to be asserted.  Id. at 529-30 (“assertion of a privilege is a proper, and very important, objection during a deposition, [so] it makes sense to allow the witness the opportunity to consult with counsel”).

There’s more stuff in Hall about other types of claimed deposition shenanigans, but the during-deposition conference is what we’re about today.

One of the interesting things about Hall is that, for these propositions, very little (and sometimes none) precedent is cited.  So basically Hall was Judge Gawthrop making it up as he went along.  Not all judges see it the same way, even here in the Eastern District of Pennsylvania.  A recent example we’ve found – at least involving drug/device (if not product liability) litigation – is In re Flonase Antitrust Litigation, 723 F. Supp.2d 761 (E.D. Pa. 2010) (Brody, J.). The Flonase issue was a little different:  opposing counsel was acting on the dictum in the Hall footnote and trying to pierce an asserted privilege, but the in-deposition conference issue was pretty much the same.

Because – unlike Hall – a privilege was directly implicated, Judge Brody first had to apply state law (that’s required by Fed. R. Evid. 501, since the federal rules use state privileges).  There wasn’t much of a fight, so the court used Pennsylvania law.

As an aside, the Pennsylvania state courts have, as far as we can tell, not followed Hall.  See Acri v. Golden Triangle Management Acceptance Co., 142 Pitts. L.J. 225, 228 (C.P Allegheny Co. 1994) (rejecting Hall in toto) (Wettick, J.).  Some parts of Hall were adopted in AmerisourceBergen Drug Corp. v. CuraScript Inc., 83 Pa. D. & C.4th 362 (C.P. Phila. Co. 2007) (attorney could inquire into “subject matter” but “not substance” of conference during break in deposition where circumstances suggested coaching – the first question after the break prompted the witness to change testimony), but that case was reversed “in part” on appeal in one of those fine quirks of Pennsylvania jurisprudence – an uncitable memorandum Superior Court decision.  See 945 A.2d 753 (Pa. Super. 2007) (table).  So we have no idea what was affirmed and what wasn’t, and whatever was affirmed isn’t precedential.

Anyway, back to Flonase.  Unlike Judge Gawthrop, who didn’t cite anything, Judge Brody looked at the law and found “no indication that such communications [off-the-record conferences] fall outside the attorney-client privilege.”  723 F. Supp. at 764.  The court found a privilege on the facts – a former employee of the client of the counsel with whom the witness conferred.  Id. at 764-65.  Other facts (unlike Hall) were favorable for the conferring side:  the witness “testif[ied] under oath that no witness coaching took place during those conversations.”  Id. at 765.

So now, that’s clear as mud, so we’ll try taking a look at what other courts have done.  One other thing to keep in mind – does the length of the adjournment of the deposition matter?  Both Judge Gawthrop and Judge Brody were dealing with nothing more than brief interruptions of questioning.  What if, for completely unrelated reasons, the deposition was continued for several days?  Several weeks?  At some point in time we would expect the rationale for Hall to start breaking down and issues concerning a deponent’s right to counsel take on more weight.

In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D. Nev. 1998), did not involve any deposition conduct, but instead a prophylactic set of standards for depositions yet to take place. I n that context, Stratospheric cut Hall down to size.  The court prohibited conferences only during breaks “initiated” by the deponent or his/her counsel.   Otherwise:
This Court will not preclude an attorney, during a recess that he or she did not request, from making sure that his or her client did not misunderstand or misinterpret questions or documents, or attempt to help rehabilitate the client by fulfilling an attorney's ethical duty to prepare a witness.  So long as attorneys do not demand a break in the questions, or demand a conference between question and answers, the Court is confident that the search for truth will adequately prevail.

Id. at 621 (emphasis added).  Obviously, there was no loss of privilege for conferences allowed by the court.  Id. at 622 (“disagree[ing] with the contention that any conference counsel may have with the deponent during a deposition waives the claim of privilege”).

Other courts seem to agree more with Stratosphere than with Hall, and allow deponents to confer with counsel during breaks in the action (such as for lunch or at the end of a day) not undertaken solely for the purpose of conferring.  State ex rel. Means v. King, 520 S.E.2d 875, 882 (W. Va. 1999) (“an attorney may confer with his or her client witness during a recess or break in a discovery deposition, so long as the attorney did not request a break in the questions or request a conference between a question and an answer for an improper purpose”); Yoskowitz v. Yazdanfar, 900 A.2d 900, 906 (Pa. Super. 2006) (no sanctions for conferring “during a break, and not during questioning”); Ecker v. Wisconsin Central Ltd., 2008 WL 1777222, at *3 (E.D. Wis. April 16, 2008) (“the mere fact that counsel . . . conferred with the witness during a break after the [opposition] completed his examination does not warrant sanctions”); Henry v. Champlain Enterprises, Inc., 212 F.R.D. 73, 92 (N.D.N.Y. 2003) (refusing on privilege grounds to require disclosure of what “counsel said to [the deponent] during the break in the deposition”); Odone v. Croda International PLC, 170 F.R.D. 66, 69 (D.D.C. 1997) (a court “cannot penalize an attorney for utilizing a five-minute recess that he did not request”); Tex. R. Civ. P. 199.5(d) (allowing conferences during otherwise scheduled breaks); In re PSE&G Shareholder Litigation, 726 A.2d 994, 997 (N.J. Ch. Div.1998) (deponents allowed to confer with counsel during recesses between days of depositions, but not during lunch break and other breaks during the day of deposition; deferring any privilege issues).  At least one ethical opinion that we've found also rejects Hall's no-coaching rationale for prohibiting in-deposition conferences.

On the other hand, in United States v. Philip Morris Inc., 212 F.R.D. 418, 420 (D.D.C. 2002), the court held that, as long as “there is no temporal interruption and the deposition is continued on a day-to-day basis with no intervening passage of time,” that there were to be no overnight consultations between the witness and counsel.  Id. at 420.  If, however, the deposition “cannot be held on consecutive days” conferences were allowed.  Id.

The longer the break, the less likely it is that Hall-type restrictions upon deponent-counsel consultation will be imposed.  In McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648 (D. Colo. 2001), the court declined to impose any restrictions where the gap between direct and cross might be “several weeks”:
The relief requested . . . here is particularly inappropriate.  It would have the effect of barring [the deponent] from conferring with his counsel for the entire period between the sessions of his deposition, in this case several weeks.  Taken to its logical extreme, [it] would bar consultation between a party and his lawyer from the time of his deposition through trial, because there might be “coaching” which would cause a party-witness to alter his deposition testimony at trial. That result is absurd.
Id. at 650.  Del. Super. R. Civ. P. 30(D)(1) (no conferences during “recesses or continuances” in depositions “of less than five calendar days”).  We haven’t found any cases, and only one court rule (S.C.R. Civ. P. 30(j)(5), see In re Anonymous Member of South Carolina Bar, 552 S.E.2d 10, 16-17 (S.C. 2001) (discussing rule)) that prohibits conferences during breaks in depositions without regard to the length of the adjournment).

Most of the precedent following Hall deals with interruptions by the deponent’s counsel during questioning for the sole purpose of conferring:  ReedHycalog UK, Ltd. v. Diamond Innovations Inc., 2010 WL 3238312, at *7 (E.D. Tex. Aug. 12, 2010) (listing, as one of many bases for sanctions, conferring with a deponent “during a break in his deposition, which led him to change his answer to an important question, and then refused to let him answer questions about the discussion with counsel”); BNSF Railway Co. v. San Joaquin Valley Railroad Co., 2009 WL 3872043, at *3-4 (E.D. Cal. Nov. 17, 2009) (sanctioning an “unscheduled break . . . for the witness when a question was pending”); Plaisted v. Geisinger Medical Center, 210 F.R.D. 527, 534-35 (M.D. Pa. 2002) (opposing counsel allowed to inquire into substance of conferences that occurred while questions were pending); Applied Telematics, Inc. v. Sprint Corp., 1995 WL 79237 (E.D. Pa. Feb. 22, 1995) (conferring while a question was pending); Armstrong v. Hussmann Co., 163 F.R.D. 299, 303 (E.D. Mo. 1995) (not entirely clear, but conferences seem to be during questioning); Langer v. Presbyterian Medical Center of Philadelphia, 1995 WL 79520, at *11 (E.D. Pa. Feb. 17, 1995) (“confer[ing] with [the] witness constantly during [the] deposition” was sanctionable), vacated on reconsideration on other grounds, 1995 WL 395937 (E.D. Pa. July 3, 1995); Alaska R. Civ. P. 30(d)(1) (prohibiting “[c]ontinual and unwarranted off-the-record conferences between the deponent and counsel following the propounding of questions and prior to the answer”); N.J. Ct. R. 4:14-3(f) (no conferences “while testimony is being taken except with regard to the assertion of a claim of privilege, a right of confidentiality or a limitation pursuant to a previously entered court order”); Holland v. Fisher, 1994 WL 878780, at *6 (Mass. Super. Dec. 21, 1994) (an attorney has no right to confer with a deponent while a question is pending); cf. Ngai v. Old Navy, 2009 WL 2391282, at *4-5 (D.N.J. July 31, 2009) (text messages sent between counsel and deponent during deposition and during breaks during day were not privileged).

So putting all this together, what can we say?

First, conferring with the deponent (on anything other than privilege) while a question is pending is asking for trouble. The weight of authority puts that on the wrong side of the line.

Second, taking a break during questioning for the sole purpose of conferring with the deponent has also drawn quite a bit of judicial fire.  Expect trouble if doing this, although sanctions may well be avoided if the witness testifies that no coaching occurred.

Third, conferring over lunch or other breaks during the deposition taken for unrelated reasons is more likely to be viewed as OK.  Again, if you’re willing to have the witness testify that no coaching occurred, so much the better.

Fourth, just as the weight of authority is against conferring with questions pending, once we get to overnight breaks, the weight has shifted decisively to such conferences being allowable.  There’s some contrary precedent, but not much.

Fifth, once we get into the realm of multi-day adjournments, except possibly in South Carolina (and Delaware, if less than five days), conferences between counsel and the deponent are all right.