LITIGATION
Breaktime Balancing Act: Navigating Attorney-Witness Discussions in Depositions By BRIAN R IVERSON
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ttorneys and witness-clients are frequently tempted to discuss testimony during deposition breaks. The recent increase in remote depositions during the COVID-19 pandemic has made it even more tempting to communicate during the deposition, for example, by exchanging text messages. However, attorneys and litigants are often surprised to learn that the rules governing these
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communications vary greatly by jurisdiction. Here are several common approaches and communication guidelines counsel should consider when conducting depositions in federal proceedings.
NO-CONSULTATION RULES “No-consultation” rules first appeared in the 1980s. The strictest versions prohibit attorneys and their
JANUARY 2024
witness-clients from engaging in any private, off-the-record conferences during deposition breaks, except for the purpose of deciding whether to assert a privilege. The primary rationale is that depositions are meant to record a witness’s testimony as to the facts. The attorney’s job is to frame the facts in a manner favorable to the client, not to coach the witness on how to testify. Penalties for violating no-consultation rules include BACK TO CONTENTS
