The increase in remote depositions during the COVID-19 pandemic has brought a new urgency to a question that has confused practitioners for decades: May an attorney communicate with a witness-client during a deposition recess? Bass, Berry & Sims attorney Brian Iverson analyzed the landscape and recommended best practices for dealing with this issue in an article for Today’s General Counsel.

Brian’s article highlighted “no-consultation” rules presently in place in several jurisdictions.  These strict rules prohibit attorneys and their witness-clients from engaging in any private, off-the-record conferences during deposition breaks, except for the purpose of deciding whether to assert privilege.  Many courts, however, have criticized this strict approach as impinging too far on the attorney-client relationship.  As the case law has developed, federal courts have taken a wide range of approaches to address private, off-the-record communications, meaning there is not a uniform legal standard across jurisdictions.

To address the mixed authorities across federal courts, Brian suggested several guidelines to navigate discussions during deposition recesses, including:

  • Attorneys should not communicate with witness-clients or request a break while a question is pending, except on matters relating to privilege.
  • Attorneys should never coach witnesses on what to say or how to testify either before or during a deposition.
  • Attorneys should know their jurisdiction’s rules governing private, off-the-record conferences and research the applicable rules in other jurisdictions before defending depositions there.
  • The same restrictions on communicating during an in-person deposition will apply to communications by text, instant message, email or other means during a remote deposition.

Although attorneys and witness-clients are often tempted to discuss testimony during deposition recesses, these discussions present a risk that the court might find the attorney-client privilege waived or impose monetary sanctions in certain jurisdictions. As counsel seek to identify and mitigate risk for their clients, they must know the applicable restrictions before the deposition begins.

The full article, “Breaktime Balancing Act: Navigating Attorney-Witness Discussions in Depositions,” was published by Today’s General Counsel on December 14 and is available online. The article also published in the January 2024 print edition.

Brian performed a more detailed analysis of this topic in an article published in the Georgetown Journal of Legal Ethics which is available 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).