“You can’t do that,” the opposing counsel exclaims, but you go ahead anyway and leave the room with your client.
In the hallway you calm your client down, discuss her prior testimony, and suggest how she should answer a number of questions you anticipate will be asked. You advise her to remain composed during the next session of the deposition, and you tell her you will work with her again during the lunch break.
When you and your client return, the opposing counsel says, “Let the record reflect that counsel and Mrs. Rosenberg stepped out of the deposition for five minutes over my objection.” The first question he asks is: “Mrs. Rosenberg, what did you and your lawyer discuss in the hall during the recess?” You object and instruct the witness not to answer on the basis of the attorney-client privilege.
Basis for sanctions
Whether you know it or not, your actions have established a basis for potential sanctions against you and your client. Coaching the witness during the deposition is improper, even if the witness is your own client. The only proper basis for taking a break to discuss the deposition with your client is to determine if a privilege exists.
The Discovery Guidelines of the U.S. District Court for the District of Maryland (the “Discovery Guidelines,” Appendix A to the Local Rules) do not permit you to talk to your client about the substance of prior testimony. Discovery Guideline 5(f) indicates that to do so is presumptively improper.
In federal cases, talking to your client during a deposition break is only acceptable if you are trying to determine whether to assert a privilege or if the conversation does not concern the substance of the deponent’s prior testimony. You may discuss topics relating to anticipated questions, but such a discussion raises the risk that your conversation will—directly or indirectly—dwell on prior testimony and therefore be prohibited.
Instructing the witness not to answer a question about what was discussed can also be improper. This is only permitted where the purpose is to preserve a privilege, to enforce a limitation directed by the court, or to present a motion that the deposition is being conducted in bad faith or for harassment. See Fed. R. Civ. 30(d)(1).
Arguably, these same procedures apply under Maryland law. Maryland’s state court discovery guidelines do not directly prohibit communications with a deponent after the deponent has been sworn, but a similar issue is addressed in Maryland Rule 2-415. This Rule discourages counsel from coaching a deponent while making objections during a deposition, providing that “[i]f a party desires to make an objection for the record during the taking of a deposition that reasonably could have the effect of coaching or suggesting to the deponent how to answer, then the deponent, at the request of any party, shall be excused from the deposition during the making of the objection.”
As an aside, depositions can also raise difficult issues concerning the application of the work-product doctrine. The modern trend is for courts to extend work-product protection to the opinions conveyed by a lawyer to a witness, but not to extend the protection to the version of the facts as conveyed by the lawyer to the witness. (See, e.g., Ford v. Philips Elec. Instruments Co., 82 F.R.D. 359, 360-61 (E.D. Pa. 1979); Delco Wire & Cable, Inc. v. Weinberger, 109 F.R.D. 680, 689-92 (E.D. Pa. 1986).)
Handle it in advance
As a practical matter, you may wish to agree in advance with opposing counsel to allow for private conferences with a client. If you do, remember that all relevant, nonprivileged communications are discoverable. Simply because a communication occurs during a break from a deposition does not alter this well-established principle. As an alternative, you may agree with opposing counsel not to ask questions about what was discussed outside the deposition room.
Perhaps the best lesson to be learned here is that thorough witness preparation is crucial to defending a deposition successfully. By carefully preparing your client for a deposition, and by meticulously reviewing the facts and the law beforehand, you can minimize the risk of having a nervous client who needs to take a break to discuss the case off the record.