During a deposition, many of us have seen the opposing counsel request a break and during that break hold a conference with the deponent. But is that conference protected under the attorney-client privilege? The answer: It depends on what jurisdiction you are in. In Nevada, a discussion of how to proceed as to communications held during a deposition break was recently challenged and decided in the case of Coyote Springs Investment, LLC v. The Eighth Judicial District Court of Nevada, et al, 131 Nev., Adv. Op. 18 (April 2, 2015).
In Coyote Springs, Coyote Springs and real party in interest, BrightSource Energy, Inc., entered into a lease for BrightSource to develop a solar energy generating facility on Coyote Spring’s property. About a year later, BrightSource sought to terminate the lease and in response, Coyote Springs informed BrightSource that the termination was ineffective in the absence of a lease termination fee. A dispute arose, and Coyote Springs sued BrightSource. During the discovery process, the parties deposed the former co-owner and manager of Coyote Springs. The deponent was questioned by BrightSource regarding the lease’s termination provisions, and noted that the provisions were the business terms agreed upon by the parties. After BrightSource’s counsel completed his questioning, Coyote Springs’ counsel suggested taking a break and requested a conference room. BrightSource’s counsel objected to any discussions during the break but the conference took place anyways. After returning from the conference, Coyote Springs’ counsel resumed his questioning and during that questioning, the deponent clarified that he believed the term sheets were not controlling and that it was his understanding that once one of the provisions in the agreement had been met, the company had earned the termination fee. Following the deposition, BrightSource filed a motion in limine to exclude the post-conference testimony and to “elicit at trial the substance of what was said during the private conference.” The district court concluded that “in general . . . you can’t do your witness prep during breaks” and explained that if the deponent talked about the questioning during a deposition break and it was not part of his preparation that was done ahead of time, “it may be fair game” for inquiry.
Trial commenced and during cross-examination of the deponent, BrightSource inquired as to what was discussed. Coyote Springs’ counsel objected based on attorney-client privilege. The court noted that the conference may have addressed privileged information, but the objection was overruled “given the timing of the communication between counsel and the witness,” and, therefore allowed the questioning to continue. At the close of BrightSource’s case, Coyote Springs made an oral motion for reconsideration of the deposition issue. The court determined that the deponent’s anticipated testimony about the conference discussion was material to the issue of mistake, and thus stayed the entry of its findings of fact and conclusions of law pending resolution of the petition for writ of prohibition challenging the district court’s order that required disclosure of the private communication.
On review, the Supreme Court of Nevada looked to the two seminal cases that directly address the propriety of conferences between attorneys and witnesses during deposition breaks: Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993) and In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D. Nev. 1998). In Hall, the United States District Court for the Eastern District of Pennsylvania held that “conferences between witnesses and lawyer are prohibited both during the deposition and during recesses,” unless the conference concerns the assertion of a privilege. 150 F.R.D. at 529. If a conference is called during the deposition to determine whether to assert a privilege, the Hall court advised that “the conferring attorney should place on the record the fact that the conference occurred, the subject of the conference, and the decision reached as to whether to assert a privilege.” Id. at 530. In ruling so, the court referred to Federal Rule of Civil Procedure 30(c), which states that “examination and cross-examination of witnesses [during deposition] may proceed as permitted at the trial.” Id. at 527 (emphasis added)(quoting Fed. R. Civ. P. 30(c)(1987)). The court explained that during a civil trial examination, “a witness and his or her lawyer are not permitted to confer at their pleasure during the witness’s testimony. Once a witness has been prepared and has taken the stand, that witness is on his or her own.” Id. at 528 (citing Aiello v. City of Wilmington, 623 F.2d 845 (3d Cir. 1980)(holding that plaintiff and counsel could not communicate during breaks in cross-examination during trial). The Hall court emphasized the need to protect the underlying purposes of deposition rules and acknowledged that prohibiting private conferences during depositions may create concerns for a witness’s right to an attorney and due process, but stated that it is a lawyer’s “right, if not duty” to adequately prepare the witness before a deposition, and any concern after the deposition begins “is somewhat tempered by the underlying goal of our discovery rules: getting to the truth.” Id.
After the Hall decision was published, the United States District Court for the District of Nevada in the In re Stratosphere case concluded that the Hall court may have gone too far, holding that attorneys may conduct private meetings during unrequested recesses in depositions in order to ensure that the “client did not misunderstand or misinterpret questions or documents,” to fulfill their “ethical duty to prepare a witness,” or to determine whether to assert a privilege. 182 F.R.D at 621. In In re Stratosphere, the court agreed with Hall that a “questioning attorney is entitled to have the witness, and the witness alone, answer questions,” and the witness should not “seek understanding or direction about how to answer the question from his or her attorney.” Id. However, the court did not adopt Hall’s strict requirements, which do not differentiate between “preclud[ing] attorney-coaching of witnesses” and “deny[ing] someone the right to counsel.” Id.
In considering these two cases, the Nevada Supreme Court, expanded the ruling in In re Stratosphere and found that attorneys may confer with witnesses during requested recesses in depositions only to determine whether to assert a privilege. However, in order for the attorney-client privilege to apply to these conferences, counsel must state on the deposition record (1) the fact that a conference took place, (2) the subject of the conference, and (3) the result of the conference. In the Coyote Springs matter, because counsel did not make a prompt, sufficient record of the conference so as to preserve the attorney-client privilege, the court that the district court did not abuse its discretion in determining that the conference was not privileged.
This precedent demonstrates the importance of ensuring that any witness on your side is properly prepared for his or her deposition. If uncertainty arises during questioning, then it is important that the attorney ask follow-up questions of the deponent to clarify any issues. Do not request a conference in the middle of the questioning, as the communications will not be considered privileged. However, it is important to note that, based on the In re Stratosphere case, it is likely that any conferences held during unrequested recesses (i.e., the counsel asking the questions seeking to take a break) are allowed and privileged regardless of the scope of the communications. If an issue comes up that may require assertion of a privilege, but requires a meeting with the witness first, a conference may be requested, but ensure that following that conference a prompt and sufficient record of (1) the fact that a conference took place, (2) the subject of the conference, and (3) the result of the conference, are completed, otherwise, again, the discussions during the conference may not be considered attorney-client privilege.