Taking a deposition is one of the most effective ways in obtaining discovery in civil cases. Depositions are powerful tools because the information obtained at depositions can be used at trial. As such, it is important that depositions are conducted fairly and in accordance with all applicable rules.
Oftentimes, during a deposition, a deponent will have off-the-record conversations with his attorney. After this conversation, the deponent will resume the deposition, presumably as instructed by the attorney. This is common deposition practice in California.
At least one California court, however, has prohibited this practice and held that attorneys may not engage in off-the-record conferences with their clients during depositions, except for the purpose of deciding whether to assert a privilege. Vestin Realty Mortgage. II, Inc. v. Klaas (S.D. 2010) 2010 WL 4259946, at 4 (citing Hall v. Clifton Precision (E.D. Pa. 1993) 150 F.R.D. 525, 528 (blanketedly prohibited any communications between a deponent and his attorney, even during breaks, except to determine whether to assert a privilege)). This court limited a deponent’s rights to communicate with his attorney during a deposition, advising that there is no need “for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers.” Id. at 3. Instead, the deponent should ask the deposing attorney, not his own attorney, for any clarifications, definitions, explanations during the deposition. Id. at 4. Therefore, any off-the-record conferences should be for the sole purpose of deciding whether to assert a privilege – not to clarify the questions or instruct the witness how to answer. In fact, the court warned that the deposing attorney may ask, on the record, about any off-the-record communications to determine whether there has been any coaching of the witness, which can result in sanctions. Ibid.
Other states have already followed this practice and preclude any off-the-record communications during depositions (except those concerning privilege). If courts continue to follow this apparent trend, the deposition practice will begin to look notably different.
In any event, the role of non-deposing attorneys in depositions are limited to simply objecting and asserting privileges when needed – not interpreting questions, or instructing their clients how to respond. Therefore, attorneys should think twice before engaging in off-the-record conversations with their clients to avoid any claims that they are improperly coaching their clients.
By C. Mina Kim of Schorr Law, APC, www.schorr-law.com, 310-954-1877, firstname.lastname@example.org