Give Me a Break: Regulating Communications Between Attorneys and Their Witness-Clients During Deposition Recesses

• Author: Brian R. Iverson
• Position: Member, Bass, Berry & Sims PLC in Washington, D.C.; Pepperdine University School of Law, J.D., magna cum laude and Order of the Coif; Belmont University, B.B.A., cum laude
• Pages: 497-536

Give Me a Break: Regulating Communications

Between Attorneys and Their Witness-Clients

During Deposition Recesses

BRIAN R. IVERSON*

ABSTRACT

Civil depositions typically include periodic breaks, and many attorneys natu-

rally want to discuss the testimony with their witness-clients during those

breaks. With the increase in remote depositions during the COVID-19 pan-

demic, an attorney and witness-client may wish to communicate even more fre-

quently, for example, by exchanging text messages during the questioning. Case

law varies greatly by jurisdiction and does not provide clear guidance on what

types of communications during a deposition are permitted. This Article reviews

the existing authorities, policy rationales, and other scholarly proposals before

recommending an amendment to the Federal Rules of Civil Procedure to pro-

vide greater clarity and predictability to attorneys and their witness-clients.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498

I. THE SEMINAL DECISIONS IN HALL AND IN RE

STRATOSPHERE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502

A. HALL v. CLIFTON PRECISION . . . . . . . . . . . . . . . . . . . . . . 503

B. IN RE STRATOSPHERE CORPORATE SECURITIES

LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506

II. FEDERAL COURTS HAVE TAKEN A VARIETY OF APPROACHES

SINCE HALL AND STRATOSPHERE . . . . . . . . . . . . . . . . . . . . . . . 508

* Member, Bass, Berry & Sims PLC in Washington, D.C.; Pepperdine University School of Law, J.D.,

magna cum laude and Order of the Coif; Belmont University, B.B.A., cum laude. © 2023, Brian R. Iverson. I

wish to thank my wife, Jessica Iverson, for her helpful insights on previous drafts of this Article and for her lov-

ing support during many hours of research and drafting. I also wish to thank my colleagues Jonathan Nelson

and Brook Lathram for their valuable feedback on my analysis and proposed rule. Finally, I wish to thank the

staff and editorial board at the Georgetown Journal of Legal Ethics, particularly Nathan Winshall, Joshua

Raizner, and Brooke Brimo, for their constructive suggestions and edits.

497

A. THE SEVENTH CIRCUIT’S BRIGHT-LINE RULE WITH

DISCRETION LEFT TO DISTRICT COURTS TO ADDRESS

VIOLATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508

B. OTHER DISTRICT COURTS HAVE TAKEN A VARIETY OF

DIFFERENT APPROACHES . . . . . . . . . . . . . . . . . . . . . . . . . 510

1. DISTRICT COURTS IN THE THIRD CIRCUIT DO NOT UNIFORMLY

FOLLOW HALL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510

2. DISTRICT COURTS IN THE NINTH CIRCUIT DO NOT UNIFORMLY

FOLLOW STRATOSPHERE . . . . . . . . . . . . . . . . . . . . . . . . . . 512

3. DISTRICT COURTS IN OTHER CIRCUITS TAKE A VARIETY OF

APPROACHES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 515

III. EXAMINING THE RATIONALES FOR THE VARIOUS APPROACHES 517

A. DEPOSITIONS “PROCEED AS THEY WOULD AT TRIAL”. . . 518

B. ATTORNEYS SHOULD NOT BE PERMITTED TO COACH

THEIR WITNESS-CLIENTS . . . . . . . . . . . . . . . . . . . . . . . . 520

C. CLIENTS HAVE A RIGHT TO COUNSEL . . . . . . . . . . . . . . . 524

D. ATTORNEYS ARE ETHICALLY REQUIRED TO TAKE

REMEDIAL MEASURES FOR FALSE TESTIMONY. . . . . . . . 526

IV. PROPOSED AMENDMENT TO THE FEDERAL RULES OF CIVIL

PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528

A. AREAS FOR IMPROVEMENT IN PRIOR PROPOSALS . . . . . . 529

B. THE INCREASE IN REMOTE DEPOSITIONS RAISES A NEW

URGENCY FOR A UNIFORM RULE . . . . . . . . . . . . . . . . . . . 531

C. PROPOSED AMENDMENT TO RULE 30. . . . . . . . . . . . . . . . 533

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 536

INTRODUCTION

Civil depositions usually include periodic breaks to stretch, refill drinks, use

the restroom, or eat lunch.

1

During these breaks, the witness and her counsel often

want to discuss the testimony.

2

Since the COVID-19 pandemic began, many

1. A. Darby Dickerson, The Law and Ethics of Civil Depositions, 57 MD. L. REV. 273, 342–43 (1998).

2. Id. (observing that, “[b]ecause most attorneys use private conferences, no one wants to complain too

loudly”).

498 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 36:497

depositions have shifted to Zoom or other remote platforms.

3

See, e.g., Suzanne Quinson, Depositions: Is the Future Remote?, PLANET DEPOS (Jan. 19, 2022), https://

www.jdsupra.com/legalnews/depositions-is-the-future-remote-1473803/ [https://perma.cc/7AVQ-845C]

(describing the results of a survey in summer 2021 assessing law firms’ attitudes toward remote depositions).

In remote deposi-

tions, attorneys and clients may be tempted to communicate more frequently by

text messages or instant messages, even while questions are pending.

4

Although

communications between an attorney and witness-client in the course of a deposi-

tion are common, many attorneys do not have a clear understanding of the per-

missible bounds for the communications.

5

That is for good reason: the rules and

case law do not provide clear guidance.

In the 1980s and 1990s, some federal district courts began imposing “no-con-

sultation” rules through orders, standing orders, and local rules.

6

Although the pa-

rameters varied, “no-consultation” rules imposed significant restrictions on an

attorney’s ability to communicate with a witness-client during a deposition.

7

Penalties for violating these rules included monetary sanctions

8

and waiver of the

attorney-client privilege.

9

Since this trend began, federal courts across the coun-

try have taken a wide range of approaches to address conferences between attor-

neys and their witness-clients during a deposition.

10

Limitations on private conferences are rarely addressed on appeal, and the var-

iance in federal district court approaches has increased over time.

11

For example,

in recent years, one court ordered a complete ban on all conferences between an

attorney and witness-client during deposition breaks, stating that any conferences

that occurred in violation of the ban would not be protected by privilege and

would be a proper subject for inquiry by the deposing counsel.

12

Another court

found that an attorney improperly conferred with his witness-client during a

break requested by the interrogating attorney but declined to impose sanctions

for the improper conference.

13

Meanwhile, a third court declined to enter any

restrictions on conferences between an attorney and witness-client between

3.

4. See, e.g., Ngai v. Old Navy, No. 07-5653, 2009 WL 2391282, at *4–5 (D.N.J. July 31, 2009).

5. See Dickerson, supra note 1, at 342.

6. See David H. Taylor, Rambo as Potted Plant: Local Rulemaking’s Preemptive Strike Against Witness-

Coaching During Depositions, 40 VILL. L. REV. 1057, 1062–70 (1995); Jean M. Cary, Rambo Depositions

Revisited: Controlling Attorney-Client Consultations During Depositions, 19 GEO. J. LEGAL ETHICS 367, 374–

86 (2006); Joseph R. Wilbert, Note, Muzzling Rambo Attorneys: Preventing Abusive Witness Coaching by

Banning Attorney-Initiated Consultations with Deponents, 21 GEO. J. LEGAL ETHICS 1129, 1131–37 (2008).

7. See, e.g., Hall v. Clifton Precision, 150 F.R.D. 525, 531–32 (E.D. Pa. 1993).

8. See, e.g., BNSF Ry. Co. v. San Joaquin Valley R.R. Co., No. 1:08-cv-01086-AWI-SMS, 2009 WL

3872043, at *4 (E.D. Cal. Nov. 17, 2009).

9. See, e.g., Hall, 150 F.R.D. at 532.

10. See infra Parts I, II.

11. See infra Parts I, II.

12. See Peronis v. United States, No. 2:16-cv-01389-NBF, 2017 WL 696132, at *2–3 (W.D. Pa. Feb. 17,

2017).

13. Gay v. City of Rockford, No. 20 CV 50385, 2021 WL 5865716, at *3–4 (N.D. Ill. Dec. 10, 2021).

2023] GIVE ME A BREAK 499