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Client Communications During Deposition Breaks May Not Be Privileged

Scenario:

You have spent hours prepping your client for her deposition testimony. A key document is introduced at the deposition and opposing counsel begins to ask a series of questions about the significance of the document. The questions make you nervous and you announce that you need a break. Most litigators have found themselves on either side of this discovery conundrum. The scenario usually causes a bit of a scramble on both sides. What should you do?

Rule:

The Nevada Supreme Court recently answered this question and provided guidelines for Nevada attorneys facing this discovery conundrum. In Coyote Springs Investment, LLC v. Dist. Ct., 131 Nev. Adv. Op. 18 (April 2, 2015), the Court ruled that while attorneys may confer with witnesses during unrequested recess or break in a deposition, “attorneys may not request a break to confer with witnesses in a discovery deposition unless the purpose of the break is to determine whether to assert a privilege.”

Based on this over-arching rule, it is undisputed that you may not coach a witness during a deposition break, particularly if a question is pending. Put simply, taking a break while a question is pending is asking for trouble, except to address matters of privilege.

Under Coyote Springs, if you are defending the deposition, and you have a reasonable basis upon which to conclude that a break is warranted to discuss whether a question invokes the privilege, the three steps listed below must be followed to ensure that your privileged conversations with your client maintain their privileged nature:

Step 1:             State on the record that a conference took place between yourself and your client.

Step 2:             Articulate the subject matter of the conference on the record.

Step 3:             State “the result of the conference, specifically, the outcome of the decision whether to assert a privilege.”

Beware:           **You must promptly make a record of the confidential communications after the deposition resumes in order to preserve the privilege.

If you are an attorney taking the deposition, you should preserve your own record (although not required under Coyote Springs). For example, if a question is pending when the deponent/defending counsel seeks to take a break, state so on the record. Also note that the witness and counsel have requested or intend to leave the room while the question is pending.

Following the deposition in Coyote Springs, the party seeking to preclude the post-conference testimony moved in limine to exclude that testimony and to “elicit at trial the substance of what was said during the private conference.” You may also chose to raise the issue with the judge or magistrate during the deposition, particularly if a break is taken more than once.

Bottom Line:

Unless you believe a question may invoke the attorney client privilege, do not request a break during a deposition simply to confer with the witness.

Practice Tips:

  • Adequately prepare your witness before a deposition, making sure to explain clearly that breaks are generally not allowed during questioning.

  • Consider whether the break you are taking is the type permitted or scheduled at trial.

  • Lunch breaks, regularly scheduled breaks (e., breaks not requested by the deponent or the defending attorney), and overnight recesses, are generally the types afforded at trial, and therefore, communications during these times are generally protected by the privilege.

  • If the break is not the type normally taken during trial, limit your communications with the witness solely to the issue of whether the questioning at issue would invoke the attorney client privilege.

  • Make sure you understand your obligations under Coyote Springs and have copy of it available for reference during your deposition.

  • If you are practicing outside of Nevada or your case is not governed by Nevada law, be sure to review case law and/or discovery opinions and local rules to determine the law of your jurisdiction. Other jurisdictions may have more or less stringent rules with respect to the privileged nature of communications occurring at or following a deposition.

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About this Author

Marla Hudgens, Lewis Roca Rothberger, Las Vegas, Litigation Lawyer
Associate

Ms. Hudgens is an associate in the firm’s Litigation Practice Group. She is licensed in both Nevada and in California. Her practice focuses on civil, ‎commercial, and appellate litigation at the federal and state levels. She has extensive experience in ‎the Nevada Supreme Court and the Ninth Circuit Court of Appeals.

Before joining the firm, Ms. Hudgens worked as an attorney for Lionel Sawyer & Collins. She managed ‎a broad range of commerical litigation cases, including commercial leasing disputes, fraudulent ‎conveyance actions, RICO...

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