You are defending your witness’s deposition. Opposing counsel reads the stipulations into the record and is ready to proceed. Before asking the first question, he informs your client she can request a break at any time, but cannot break in the middle of a question. Opposing counsel also states your client cannot consult with you, at all, until the deposition has concluded. Can that be done? Well, depending on your jurisdiction, the answer is fuzzy.
Depositions are the most crucial fact-finding exercise in a case’s life. They can be used to compel witnesses to admit decisive facts; make it strategically costly for witnesses to change their later testimony; and produce “soundbites” that become valuable for impeachment purposes or as settlement leverage. Whether the case goes to trial or is earlier resolved, depositions can be outcome-determinative. As a result, attorneys are naturally allowed (and expected) to carefully prepare their client or witness for a deposition. However, the line between diligent preparation and impermissible witness “coaching” can be unclear.
The Federal Rules of Civil Procedure provide general rules governing attorney conduct when taking and defending depositions. Specifically, a deposition should proceed as if the deponent was “at trial under the Federal Rules of Evidence.” These rules prohibit an attorney from instructing a witness not to answer except to preserve a privilege, to enforce limitations ordered by the court, or to present a motion for protective order. Some jurisdictions have drawn a hard line requiring strict adherence with the federal rules. Others, however, take a more lenient approach and have held the right to counsel under the Fifth Amendment gives deponents more leeway in consulting and strategizing with their counsel, particularly during testimony breaks.
This article focuses on two different approaches to the Federal Rules governing attorney deposition conduct, which have been applied in various jurisdictions throughout the country. We conclude with our own recommendations.
The Hall Standard
In 1993, the Federal District Court for the Eastern District of Pennsylvania tackled the propriety of a witness consulting with his attorney during a deposition break.[1] In Hall, the plaintiff-witness was informed by his counsel at the beginning of the deposition that if he was uncertain about one of the defense attorney’s questions, he could ask his own counsel to clarify it. After questioning began, the plaintiff requested for a break to ask his attorney for clarification. Defense counsel then presented the plaintiff with a document, and plaintiff’s counsel interjected – he needed to review the document with his client before he answered. At this point, the deposition was adjourned and defense counsel contacted the Court requesting a ruling on whether plaintiff counsel’s conduct was proper.
In a lengthy order, the Court ultimately concluded it was not. The Court determined the interests of preventing improper witness coaching outweighed the concerns about a client’s right to counsel. While a deponent undoubtedly maintains the right to counsel during a deposition, the Court concluded that right is “somewhat tempered by the underlying goal of our discovery rules: getting to the truth.” The Court further described how the rules governing deposition testimony are similar to those governing trial testimony:
“During a civil trial, 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. The same is true at a deposition. The fact that there is no judge in the room to prevent private not mean that such conferences should or may occur. The underlying reason for preventing private conferences is still present: they tend, at the very least, to give the appearance of obstructing the truth.”
Moreover, the Court specified its “no consultation” rule also applied to deposition recesses. The only exception, the Court noted, is when the purpose of the private conference is to decide whether to assert a privilege. However, following their private conference, the Court determined that the witness’s attorney must state on the record that a conference took place about a potential privilege and advise whether the privilege will be asserted.
The Stratosphere Standard
Approximately five years after Hall, the Federal District Court for the District of Nevada determined that the Hall Court’s strict application of the Federal Rules went too far.[2] In In re Stratosphere, the Court refused to apply the Hall standard to the deposition protocols in a class action suit. The Court focused its attention on a witness’s right to consult with her counsel under the Fifth Amendment, even in civil matters. The Court reasoned that Fed. R. Civ. P. 30(c) was intended to prevent witness coaching, “but not at the sacrifice of his or her right to the assistance of counsel.”
Importantly, the “Stratosphere standard” precludes a lawyer from initiating a conference with his client during a deposition, but it does allow attorneys to consult with their client during recesses they do not initiate. The Court ultimately concluded, “[s]o long as attorneys do not demand a break in the questions, or demand a conference in between question and answers, the Court is confident that the search for truth will adequately prevail.”
Application in New Hampshire
New Hampshire courts follow a slightly relaxed version of the Hall standard. In a 1998 case, the New Hampshire District Court suggested attorneys should never consult with witness-deponents who are not their clients because the attorney-client privilege does not apply. The Court encouraged counsel to observe the “strictest propriety” in depositions, but recognized it must “look to the surrounding circumstances” to determine whether consultation during a break constitutes impermissible coaching.[3]
New Hampshire also follows the principle, recognized in both Hall and Stratosphere, that a deposition should be conducted just like trial testimony, “with the exception that there is no judge there to rule on objections or admissibility and others may not be precluded from sitting in on the deposition.”[4]
Takeaways
The tension between the constitutional right to counsel and the fundamental role of depositions as a “search for the truth,” akin to a trial, lies at the heart of the Hall/Stratosphere dichotomy. It is important to note the attorneys in both Hall and Stratosphere were defending their client’s deposition. Presumably, the right to the assistance of counsel carries less weight when the deponent is a witness (lay or expert) other than the attorney’s client.
Both standards prevent attorneys defending a deposition from initiating a break in order to consult with their witness. This prohibition stems from the idea, safeguarded by Rule 30, that depositions and trial testimony should be similarly conducted. The Hall court’s ideal of “pure” witness testimony, completely unaffected by legal counsel, may seem illusory. It is based on the assumption that witnesses are completely “on their own” after their testimony commences. By contrast, the Stratosphere court takes a more pragmatic approach rooted in “[its] experience, at the bar and on the bench, that attorneys and their clients regularly confer during trial and even during the client’s testimony, while the court is in recess, be it mid-morning or mid-afternoon, the lunch recess, or the evening recess.” In other words, the Hall standard suspends, or lessens, the right to assistance of counsel during witness testimony. The Stratosphere standard, by contrast, refuses to sacrifice this constitutional right, whether before, during, or after questioning.
Ultimately, both standards allow witness preparation but seek to prevent witness “coaching”. Regardless of the jurisdiction in which they practice, attorneys should meticulously refrain from telling their witness what to respond to specific questions. However, it is nearly impossible to adequately prepare a witness without addressing, or at least mentioning, the issues or themes that opposing counsel is expected to address through questioning.
To prepare a witness for a deposition effectively, and ethically, attorneys should first explain the questioning procedure and address how the witness’s testimony fits into the case’s larger legal issues. It is important to reinforce that witnesses cannot alter or embellish facts, whether favorable or unfavorable, to improve the attorney’s case. It is counsel’s responsibility to adjust his or her case based on the witness’s testimony – not the other way around. The witness’s only prerogative should be to testify honestly. Witnesses can certainly be provided with tools to alleviate confusion, such as the ability to make questioning attorneys repeat or rephrase a question. Rehearsing potential questions is permissible, but encouraging dishonesty or drafting testimony in advance (i.e., providing a script or specific terms or phrases to misrepresent facts) is not.
Finally, we would be remiss if we failed to mention the increased risk of improper witness coaching associated with the advent of remote depositions. In October 2021, a defense attorney in a commercial dispute – and managing partner at the Boston office of a prominent national firm – faced disciplinary charges for feeding answers to a witness during a Zoom deposition. Defense counsel and his witness were in the same room throughout the entire deposition, and both were wearing masks (which plaintiff’s counsel objected to prior to the deposition’s start). In the fifth hour of questioning, plaintiff’s counsel overheard his counterpart providing the deponent with an answer to a question, and received the exact same answer from the deponent. After the deposition, plaintiff’s counsel reviewed the audio recording and observed over fifty similar instances of witness coaching. The Court held defense counsel had “plainly frustrated Plaintiff’s right to a fair examination” and “undermined the truth-seeking purpose of discovery.”[5] The attorney was ordered to withdraw from the case, forgive all legal fees owed by his client, and complete counseling on better management of emotions and judgment in the face of adversity. Perhaps more importantly, he was subjected to significant media attention over the ensuing disciplinary matter.
Ultimately, “zealous advocacy” for a client can never be used to obstruct or alter truthful deposition testimony. All attorneys endeavor to make their clients and witnesses feel supported, protected, and well-prepared. Deponents, however, answer questions under oath. Counsel should not encourage or implicitly influence them to give less than “the truth, the whole truth, and nothing but the truth” to make strategic gains or avoid an unfavorable admission.
[1]Hall v. Clifton Precision, 150 F.R.D. 525, 531 (E.D. Pa. 1993).
[2] 182 F.R.D. 614 (D. Nev. 1998).
[3] Phinney v. Paulshock, 181 F.R.D. 185, 205, n.47 (D.N.H. 1998).
[4] United States v. Kattar, 191 F.R.D. 33, 37-38 (D.N.H. 1999).
[5] Barksdale Sch. Portraits, LLC v. Williams, 339 F.R.D. 341, 345 (D. Mass. 2021).
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