Privilege Protection for Deposition-Break Communications: It’s Complicated

June 8, 2022

Some court rules explicitly prohibit communications between a deposition witness and her lawyer during a deposition break, except to discuss whether to assert a privilege objection to a pending question. See, e.g., Local Civ. Rule 30-04(E) (D.S.C.); D. Md. Local Rules, Appendix A, Discovery Guideline 6(f), (g). Absent such court-imposed prohibitions, determining whether deposition-break communications deserve privilege protection can involve very subtle distinctions.

In Pape v. Suffolk County Society for Prevention of Cruelty to Animals, the court acknowledged a court rule prohibiting such communications “during the pendency of a question,” but then articulated what seemed like a clear rule in other circumstances: “the conversation . . . that occurred during a natural break in the deposition when no question was pending is protected by the attorney-client privilege.” No. 20-cv-01490 (JMA) (JMW), 2022 U.S. Dist. LEXIS 68430, at *13-14 (E.D.N.Y. Apr. 13, 2022). Then the court began to back off – noting that the privilege would not protect such deposition-break communications if defense counsel instructed the witness “on how to answer Plaintiff’s questions, or [if counsel] ‘reminded’ him of certain facts.” Id. at *14. The court ultimately upheld the privilege assertion, emphasizing that: (1) plaintiff’s lawyer had not asked “whether the conversation with counsel refreshed the witness’s recollection,” or whether a third party was present; and (2) “[t]here is no claim by Plaintiff that [the witness] changed the course of his testimony after speaking with Defense Counsel during the short recess.” Id. at *14, 15 (footnote omitted).

Lawyers on either side of this issue should check the pertinent court’s rule, and be prepared to deal with these subtle but critical questions.