Episode 27 - Is It Okay to Confer with Clients About Their Testimony During Deposition Breaks?

Have you ever had a lawyer challenge you about conferring with your client during breaks in depositions, or suggest that you're violating some rule or ethical norm by doing so? Or, even instruct your clients before a break not to discuss their testimony with anyone - you included? The pesky notion that it's wrong to talk to clients about their testimony during deposition breaks appears to have its genesis in Hall v. Clifton Precision, a 1993 federal court ruling. But does Hall accurately represent the law, and governing rules? Jim Garrity confronts this issue, discusses the subsequent treatment of Hall by other courts, and offers his practice tips. Cases mentioned in this episode are cited below.

Pertinent Cases:

Perry v. Leeke, 488 U.S. 272 (1989) (judge in federal criminal trial could legally preclude criminal defendant from conferring with his counsel during fifteen-minute recess at conclusion of defendant’s direct examination)

McDermott v. Miami-Dade County, 753 So.2d 729 (1st DCA 2000)(state mid-level appeals court, citing the U.S. Supreme Court decision in Perry, observed that the federal Constitution does not prevent trial judges from barring conferral, between lawyer and criminal defendant, about the testimony while testimony is in progress, and that civil litigants have even fewer rights than criminal litigants)

Hall v. Clifton Precision, a Division of Litton Systems, Inc., 150 F.R.D. 525 (E. D. Pennsylvania, July 29, 1993) (forbidding conferral between lawyers and deponents during deposition, whether on lunch breaks, snack breaks, coffee breaks, recesses, or any other kind of break)

McKinley Infuser, Inc., et al. v. Zdeb, et al., 200 F.R.D. 648 (D. Colo. June 7, 2001) (rejecting Hall’s overly restrictive implications)

Ecker v. Wisconsin Central, Ltd., 2008 WL 1777222 (E.D. Wisconsin April 16, 2008) (rejecting Hall, and noting that in both the Hall and Eggleston cases, the conferrals were unusually excessive in number and often took place while questions were pending)

Eggleston v. Chicago Journeyman Plumber’s Local Union 130, 657 F.2d 890, 902 (7th Cir. 1981) (imposing restrictions on conferrals between lawyers and deponents during depositions, noting there were an estimated 127 private off the record conferrals between plaintiffs and their counsel, many of which took place before a pending question was answered)

In re Stratosphere Corporation Securities Litigation, 182 F.R.D. 614 (D. Nev. Sept. 15, 1998) (rejecting Hall as going too far, saying that as long as attorneys do not demand a break in between questions and answers, lawyers will not be precluded from conferring with their clients)

Murray v. Nationwide Better Health, et al., 2012 WL 3683397 (C.D. Ill. Aug. 24, 2012) (rejecting Hall’s restrictions, and speaking in positive terms about the Stratosphere approach)

Reynolds v. Alabama Department of Transportation, 4 F. Supp. 2d 1055 (M.D. Ala. Mar. 31, 1998) (no unqualified bar to conferral during testimony, but also no unqualified right to do so)