Things To Consider Before Counseling During Deposition

What should an attorney do in the middle of a deposition if her client answers in a way that suggests a misunderstanding of the question or a sudden loss of memory? She will likely want to confer with her client at the next available opportunity to get matters back on track, but her ability to do so without waiving privilege will depend, in part, on where the deposition is taking place.

Under the Federal Rules of Civil Procedure and Federal Rules of Evidence, courts have broad authority to control the discovery process, including depositions. Federal Rule of Civil Procedure 30(c) provides that the examination of a deponent must proceed as it would at trial. This rule, however, does not specifically address whether and when an attorney may confer with a client during a deposition.

It is generally accepted that an attorney may not initiate a break to confer with a client while a deposition question is pending, except to discuss privilege. However, there is a split of authority on whether an attorney may otherwise confer with a client during unscheduled or scheduled breaks, lunches and recesses on matters other than privilege, and to what extent those conferences are protected by the attorney-client privilege.

This article explores different approaches taken in case law and local rules and practices regarding consultations during deposition breaks. It focuses primarily on California and Delaware federal and state law, and provides a brief summary of issues to consider when determining which approach has been adopted in other jurisdictions.

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