Bass, Berry & Sims attorney Brian Iverson authored an article for the Georgetown Journal of Legal Ethics examining what types of communications between attorney and witness-client during deposition recesses are permitted. Civil depositions typically include periodic breaks, and many attorneys naturally want to discuss the testimony with their witness-clients during those breaks. With the increase in remote depositions during the COVID-19 pandemic, an attorney and witness-client may wish to communicate even more frequently, for example, by exchanging text messages during the question. Case law varies greatly by jurisdiction and does not provide clear guidance on what types of communications during deposition recesses are permitted. In the article, Brian reviews the existing authorities, policy rationales, and other scholarly proposals before recommending an amendment to the Federal Rules of Civil Procedure to provide greater clarity and predictability to attorneys and their witness-clients.
The article takes an in-depth look at the following topics:
- The seminal decisions in Hall and In re Stratosphere.
- The variety of approaches federal courts have taken since Hall and Stratosphere.
- The rationales supporting these various approaches.
- A proposed amendment to the Federal Rules of Civil Procedure.
The full article, “Give Me a Break: Regulating Communications Between Attorneys and Their Witness-Clients During Deposition Recesses,” was published by the Georgetown Journal of Legal Ethics and is available for download here. Full citation: Brian R. Iverson, Give Me A Break: Regulating Communications Between Attorneys and Their Witness Clients During Deposition Recesses, 36 Geo. J. Legal Ethics 497 (2023).