The newsletter of the ISBA’s Standing Committee on Government Lawyers
But, we were on a break…
Depositions comprise one of the most important yet routine elements of a government lawyer’s federal civil practice. Often during the course of a deposition, an attorney defending his client may wish to consult with the client/deponent during a break. The question arises whether, and under what circumstances, an attorney may discuss the substance of their client’s testimony while the client is under oath. Government lawyers should understand the current state of the law on this issue so they are prepared to address this situation if it arises during a deposition. Unfortunately, the law on this issue is far from clear.
The following hypothetical illustrates the type of situation in which a government lawyer may find him or herself during the course of a deposition. Rhonda, a diligent government lawyer, is taking the deposition of the Plaintiff, who was allegedly injured in a collision involving a government vehicle. Rhonda asks the Plaintiff whether she had taken any prescription drugs prior to the accident. The Plaintiff states, “Just a few Vicodin,” at which point Richard, Plaintiff’s attorney, jumps out of his seat and demands to speak with his client. After a ten minute break, Rhonda goes back on the record and asks Plaintiff whether she had taken any Vicodin prior to driving her car on the day of the accident. Plaintiff states that she misspoke earlier, and that she had not taken any Vicodin until after the accident. Rhonda then questions Plaintiff about Plaintiff’s conversation with Richard during the break. Richard instructs Plaintiff not to answer pursuant to the attorney-client privilege. Rhonda suspects that Richard coached Plaintiff’s amended answer, but she is unsure whether she has a basis to bring sanctions under federal law.
The Federal Rules of Civil Procedure establish some minimum requirements governing deposition procedure. Rule 30 requires that the examination of a deponent proceed in the same manner as an examination of a witness during trial.1 It is unimaginable that a judge would allow an attorney to interrupt a cross examination of his client at trial in order to convene a private conference.2 However, it is less certain whether an attorney may speak with his client during a previously scheduled recess during the course of an examination. The U.S. Supreme Court has held that the denial of the right to confer with counsel during a recess in a criminal trial may be, but is not always, a violation of the Sixth Amendment right to counsel.3 The Fifth Circuit appears to be the only federal circuit court to have determined whether a civil defendant has a right to confer with counsel during a recess at trial; the Fifth Circuit found that such a right exists as part-in-parcel with the right to counsel.4 No court in the Seventh Circuit appears to have ruled on this issue.
When it comes to depositions, Rule 30 prevents witness-coaching by prohibiting attorneys from employing argumentative or suggestive speaking objections.5 The Rule also restricts an attorney from instructing the deponent to not answer a question unless it is “necessary to preserve a privilege, enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).”6 But the Rule is silent on whether an attorney may discuss the substance of a client’s testimony during a break.
There are only a few cases from Seventh Circuit courts examining the issue of whether an attorney may speak to a deponent during a break in a deposition. The courts appear split on this issue. Several courts in this Circuit have found that private conferences are permissible, but the most recent Northern District case emphatically prohibits such conferences.
The Northern District of Illinois directly considered this issue in 2004.7 The Court explained that it “knows of no rule that prohibits a witness from consulting with counsel before the witness answers a question.”8 The Court further found that where the break is requested when there is no question pending, it is unlikely that the proponent of the break would seek to influence the deponent’s testimony during the break.9 A few years later, the Eastern District of Wisconsin came to a similar conclusion, holding that during a break in the questioning, it is permissible for an attorney to discuss with the witness the questions the attorney plans to ask once the deposition resumes.10 In 2012, the Central District of Illinois determined that a deponent’s attorney may have a private conference with the deponent: (1) during a regularly scheduled recess; (2) during any recess requested by the witness, so long as no question is pending; or (3) at any time to determine whether a privilege should be invoked.11
In stark contrast to its sister courts, two Northern District of Illinois courts have unequivocally held that an attorney may not privately confer with a deponent during the course of a deposition. In 1994, a Northern District court held that “private conferences during a deposition between a deponent and his or her attorney for any purpose other than to decide whether to assert a privilege are not permitted.”12 The Court refused to impose sanctions in that matter because egregious misconduct was committed by both parties’ attorneys.13 In 2011, the Northern District again found that “once a deposition starts, counsel has no right to confer during the deposition.”14 Additionally, the Seventh Circuit, in dicta, has denounced the use of private attorney-witness conferences during deposition breaks, stating, “[i]t is too late once the ball has been snapped for the coach to send in a different play.”15
Decisions from other jurisdictions are equally conflicted. Some courts have decisively banned private conferences between a deponent and an attorney.16 The pioneer decision on this issue came from the Eastern District of Pennsylvania, where the Court held that an attorney may not confer with a deponent during any recess in the deposition proceedings, including an overnight recess.17 Other courts have prohibited an attorney from speaking to a client during a break only while there is a question pending.18 And another court has held that speaking during a break initiated by the witness is proper, while doing so during a break initiated by the defending attorney is not.19
With all of the conflicting authority, it is difficult to analyze with accuracy how a government lawyer faced with these issues, such as Rhonda in our hypothetical, should proceed. Based on the most recent Northern District authority, as well as dicta from the Seventh Circuit, Rhonda has a sufficient basis for objecting if opposing counsel insists on conferring with the deponent during the break that counsel initiated.20 Rhonda may wish to call the judge for an immediate ruling on the matter, or raise the issue later through motion practice. The Federal Rules of Civil Procedure allow for sanctions against any person who “impedes, delays, or frustrates the fair examination of the deponent.”21 Additionally, Northern District of Illinois authority indicates that under the crime-fraud exception to the attorney-client privilege, Rhonda would be able to ask the deponent about everything the deponent discussed with the attorney during the break.22 Finally, in a situation where the deponent’s testimony changes after conferring with counsel, Rhonda could request that the court perform an in camera examination of the witness to determine the truthfulness of the witness’ testimony.23
For Richard, as the defending attorney, under the current state of the case law, it is perhaps best for him to refrain from speaking to his client during breaks at the deposition, unless it is to determine whether a privilege should be asserted.24 If Richard feels that a private conference with his client is absolutely necessary, he should certainly wait until there are no questions pending before taking a recess.25
As with most issues, the final determination in any given case is up to the sound discretion of the trial judge. Until the courts take up this issue again and provide further guidance for the bar, wise government attorneys should attempt to avoid the potential perils of speaking with a client during a break at a deposition, and keep opposing counsel from improperly influencing a deponent’s testimony. ■