If you have been litigating long enough, it has undoubtedly happened to you: Your opponent’s deposition day has finally arrived, and after you have gone through the introductions and instructions on the record, you ask about 20 minutes of background questions. You can tell the witness has been adequately prepared by his attorney, and you move into a line of questioning regarding some bank statements that were produced. The witness, a small business owner in a dispute with a vendor, seems to effortlessly answer all of your questions.
A few days earlier, you received some bank records via your subpoena, and you are not sure your opponent has reviewed them with his client. As you pull them out of your file, you see your opponent and the witness start to fidget, and you think you might be on to something. The next line of questioning goes like this:
Question: Sir I sent a subpoena to your bank for your checking account for the most recent three months period. Have you seen these before?
Answer: No. I haven’t seen these.
Question: Here, why don’t you take a look at these 15 pages of records, and I’ve even made a copy for your attorney to look at while we go through these bank statements.
Question: You see that deposit for $12,500 on August 20, 2008?
(The witness and his attorney are now shuffling through all the bank records, and you can tell that there is concern about what is in these bank statements)
Answer: I see that deposit. Yes.
Question: Where did those funds come from?
Opposing attorney: Objection. I’m not going to let him answer that question until I review these records with the witness.
Plaintiff’s attorney: No. You can’t do that. This deposition is to find out what your client saw, heard and what he thinks and knows. There’s no reason that you need to act as an intermediary.
Opposing attorney: It doesn’t matter because anything I talk to him about is protected by attorney-client privilege anyway.
Plaintiff’s attorney: That’s not the point, and I’m not asking that he divulge any privileged conversations anyway. I just don’t want the witness to have an opportunity to confer with you to perhaps learn how to best answer the questions about these bank statements.
Who’s right? Are private conferences allowed? What if it is privileged communications? Can interrogating counsel ask the witness what was discussed, if not privileged? As in many cases, it mostly depends on whether you’re in federal court or state court. In the Eastern District of Pennsylvania, Judge Gawthrop authored the opinion in Hall v. Clifton Precision, 150 F.R.D. 525 (ED. Pa 1992), that is still widely considered as authoritative. Hall holds that counsel and their witness-client shall not engage in any private, off the record conferences during depositions or during breaks or recesses, except for the purpose of deciding whether to assert a privilege. Any conference which occurs pursuant to, or in violation of those guidelines are proper subjects or inquiry by deposing counsel to ascertain whether there has been any witness coaching and, if so, what kind of coaching was made. Such a conference shall be noted on the record by the counsel who participated in the conference and the purpose of the conference shall also be noted on the record.
State Court practice, however, does not precisely follow Hall, and until December 2007, no Pennsylvania Appellate Court or court rule addressed the issue of the conduct of attorneys and clients during depositions. Then, in AmerisourceBergen Drug Corporation v. Curascript, Inc, No. 690 EDA 2007 (unpublished), the Superior Court set forth guidelines on such conduct, and acknowledged that there was no such precedent yet in state court. Amerisource, an appeal from the Philadelphia Commerce Court, does not preclude off the record conversations, but allows deposing counsel to ask only whether a private conversation took place on the relevant subject matter. The Court suggested that the following type of questions could be asked “At any time during the breaks of this deposition, did you discuss [what I just asked you about] with your lawyer?”. If the witness responded that no such conversation took place, then the deposition shall move on without further inquiry. If the answer is yes, however, that line of questioning would similarly be concluded because there is no authority to permit the attorney to continue the questioning about the content of such a privileged communication.
In short, Federal Court practice holds that you can not confer with your witness, but if you do, it’s fair game to ask if the witness was coached and what he was coached about. In State Court, this recent opinion can be interpreted that you can confer, but interrogating counsel is then limited to the follow-up questions about the content of the conversation. Guidance will be welcome in the form of Rules of Procedure.