It is half past noon and with some pep in your stride, you accompany your client – a mid-level corporate executive – from a well-deserved lunch back to a law firm conference room to resume his deposition. Along the way you spot your adversary glancing in your direction from across the hall, when your client furtively remarks, “I hope I don’t regret having ordered the chili bowl.” With a comforting smile, you turn and offer a reassuring response. As everyone takes their seats back in the conference room, the court reporter nods and announces that you are back on the record. Without missing a beat, your adversary leans over the table and snipes: “So, did you discuss anything with your attorney during the lunch break?” Your client’s face suddenly appears flushed, and with both hands on his stomach, he turns to you: “Do I need to answer that?”
Depositions can and often do go awry when one or both sides are unfamiliar with the rules governing deposition practice. Indeed, case law abounds with examples of such persistent issues as communications between attorney and witness, sanctionable conduct, making and ruling on objections, and when to compel the continuation of a deposition. This article explores these issues and more on attorney conduct during depositions.
Communications With The Witness
There is a fine line between ensuring a client is adequately prepared for and familiar with designated or expected topics for a deposition and outright coaching a client to provide misleading or even false information and testimony. To that end, attorneys must familiarize themselves with the state-specific rules of court related to deposition practice, as well as the Federal Rules of Civil Procedure (“FRCP”) for guidance at the federal level. As a general matter, after a witness has been sworn for a deposition, the defending attorney should not communicate with the deponent while testimony is taken except in limited circumstances “with regard to the assertion of a claim of privilege, a right to confidentiality or a limitation pursuant to a previously entered court order.” N.J. Ct. R. 4:14-3(f). These exceptions are narrowly circumscribed so as to streamline the process of discovery and avoid needless protraction of a deposition.
Conversations with a witness during lunch or other breaks, however, are generally permitted provided that the substance of those communications are not related to the witness’s deposition testimony or anticipated testimony. While such off-the-record discussions may be permissible, attorneys should be aware that these communications may be discoverable by the opposing side and not covered by the attorney-client privilege. See e.g., Ngai v. Old Navy, No. 07cv5653, 2009 U.S. Dist. LEXIS 67117 (D.N.J. July 31, 2009) (holding that off-the-record text messages between a witness and counsel during a deposition were not protected by the attorney-client privilege). Thus, if an off-the-record conversation takes places “between the deponent and her counsel about a topic other than to discuss asserting a privilege, then the discussion is not protected by the attorney-client privilege” and the deposing attorney may appropriately inquire about the contents thereof. Id. at *13 (citing Hall v. Clifton Precision, 150 F.R.D. 525, 529 n.7, 531-32 (E.D. Pa. 1993). See also Craig v. St. Anthony’s Med. Ctr., No. 09cv2818, 2010 U.S. App. LEXIS 14661 (8th Cir. July 19, 2010) (affirming award of attorneys’ fees and sanctions where counsel for the deponent “continually made argumentative and suggestive objections” and “engaged in private and off-the-record conversations with his client” and only once “assert[ed] a privilege to justify an off-the-record conversation or an instruction to his client to refuse to answer.”). Always be mindful that your lunchtime conversation may be the first subject of testimony once the deposition resumes.
Defending A Deposition
Generally, counsel is permitted to instruct the deponent not to answer a question (1) when necessary to preserve a privilege, (2) to enforce a limitation ordered by the court, or (3) to present a motion to terminate or limit a deposition on the grounds of bad faith or oppression. When none of these grounds for an objection exist, counsel may note the objection on the record, but the deposition will proceed as the testimony is taken subject to any objection. See Brincko v. Rio Properties, Inc., 278 F.R.D. 576, 581 (D. Nev. 2011) (“The remedy for oppressive, annoying and improper deposition questioning is not simply to instruct a witness not to answer”). The limiting of objections to those based on the form of a question, a privilege, or other enumerated exception seeks to curb deposition abuses and enhance the discovery process. See Wolfe v. Malberg, 334 N.J. Super. 630, 634 (App. Div. 2000)(objections based on form must be explained and made in such a manner as not to suggest the answer); Luangisa v. Interface Operations, 2011 U.S. Dist. LEXIS 139700 (D. Nev. Dec. 5, 2011) (“[O]bjections that result in an incomplete answer or in the witness's adoption of counsel's statement are suggestive.”).
Deposition conduct that crosses the line from zealous or appropriate advocacy to coaching a witness may result in severe sanctions ranging from attorney’s fees to dismissal of a case with prejudice. See In re Ford Motor Co. DPS6 Powershift Transmission Prods. Liab. Litig., No. 18-cv-1893, 2019 U.S. Dist. LEXIS 91557 (C.D.Cal. May 13, 2019) (ordering plaintiff’s law firm to reimburse defendant for attorneys’ fees, transportation fees, and court reporter fees incurred in connection with deposition thwarted by improper objections and coaching by plaintiff’s counsel, including “improper instructions not to answer.”). In Fla. Bar v. James, an attorney was suspended from the practice of law for three months for sending numerous text messages to a deponent regarding her deposition testimony “includ[ing] coaching and specific directions on how to respond to [opposing counsel’s] questions.” 329 So. 3d 108, 109 (Fla. 2021). In another matter, an attorney was seated with the witness in the same room wearing masks due to COVID-19 and plaintiff’s counsel reported over 50 instances where the defending attorney was heard surreptitiously providing answers to the witness followed by the witness parroting that same answer. Barksdale Sch. Portraits, LLC v. Williams, 339 F.R.D. 341 (D. Mass. 2021). The attorney was then referred for potential ethics violations and professional misconduct, with the court finding that “there can be little question that [defending counsel’s] actions during [the witness’s] deposition constitute misconduct.” Id. at 345.
In Deville v. Givaudan Fragrances Corp., 419 Fed. Appx. 201, 209 (3d Cir. 2011), the Third Circuit affirmed a district court’s imposition of sanctions against an attorney for deposition conduct where the attorney “testified on behalf of her witness by way of suggestive speaking objections.” Such conduct is contrary to the spirit of the rules of court and should not be countenanced. If an objection requires a significant explanation, you are generally better served by offering to have your witness step out of the deposition in order to avoid any accusation of an improper speaking objection.
Resolution of Issues That May Arise During a Deposition
When a dispute arises during a deposition, the rules of court provide for mechanisms by which to resolve and streamline issues to avoid unnecessary delay and needless expense. It is not uncommon due to time limitations, for example, for parties to agree to the continuation of a deposition or for the deposing party to file a motion to compel a continuation. See N.J. Ct. R. 4:14-3(d)(providing, in part, that “all depositions shall be taken continuously and without adjournment unless the court otherwise orders or the parties and the deponent stipulate otherwise.”). The same is also true with respect to the federal discovery rules due to, among other things, numerical and time limitations. See Fed. R. Civ. P. 30(d)(1)(“a deposition is limited to one day of 7 hours” unless otherwise stipulated or by order of the court); Huertas v. City of Camden, No. 06cv4676, 2009 U.S. Dist. LEXIS 87950 (D.N.J. Sept. 24, 2009)(affirming order granting motion to compel continuation of plaintiff’s deposition). But see Ciarrocchi v. Unum Grp., 2010 U.S. Dist. LEXIS 152134 (D.N.J. May 6, 2010)(denying plaintiff’s motion to compel production of additional witness with knowledge of defendant’s policies, noting that despite plaintiff’s dissatisfaction with deponent’s answers, “objection[s] at the time of the examination…must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection.”).
If the parties are at an impasse during a deposition and cannot agree to table the pending dispute, a telephone application to the court may be available for immediate adjudication. See e.g., N.J. Ct. R. 4:14-4; K.S. v. ABC Professional Corp., 330 N.J. Super. 288, 290 (App. Div. 2000). This might involve, for example, claims of bad faith by one party that is either taking or defending the deposition. In other instances, opposing counsel may be instructing the witness not to answer without a legitimate basis, for which guidance or a ruling from the court is required in order to continue. In Ivanovs v. Bayada Home Health CARE, Inc., 17cv1742, 2021 U.S. Dist. LEXIS 264322 (D.N.J. May 27, 2021), the court denied a motion to compel the defendant to provide discovery withheld on the basis of attorney-client privilege during the pendency of a deposition. Defendant’s attorney objected to several questions during the deposition of defendant’s corporate designee on the ground of attorney-client privilege and instructed the designee not to answer the questions. Id. After plaintiffs’ counsel objected to the characterization of the information being sought as privileged, the parties jointly telephoned the court to address the issue and were directed to file a formal motion on the questions not answered during the deposition.
The Bottom Line
In response to your client, you say “what we discussed is not subject to any privilege, or protective or confidentiality order, so you do need to answer the question.” In short, not all depositions will be the same, and disputes are bound to arise at some point. However, with familiarity of the rules and procedures governing depositions, issues can be resolved and the process streamlined.
Reprinted with permission from the January 29, 2024 edition of The Legal Intelligencer © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com.