The job of defending a witness during a deposition, particularly a remote deposition, can be challenging. Civil litigants have a right to consult with their attorney, though not at any time of their choosing and not in a manner that would impair the integrity of the deposition, such as when a question has been asked but not yet answered.
And then there’s the danger that deposing counsel will point out that the witness’s testimony materially changed after consultation with defending counsel.
For these reasons, it is a good idea for defending counsel to plan in advance the timing of breaks during the deposition. When the deposition is conducted remotely, an additional layer of planning should take place.
What types of electronic communications technologies will be available, either from the deposition vendor’s platform or from the law firm’s own technology resources? Will communications with the client be via telephone, email, or text message —or via videoconference “breakrooms” on the remote deposition platform? Are those technologies secure? Does the client know how to manage them?
Working these issues out in advance will contribute greatly to the success of any remote deposition.
The Right to Confer With Counsel
The right to communicate with one’s client during a deposition is guaranteed as a matter of constitutional due process. The Fifth Circuit, in Potashnick v. Port City Const. Co., 609 F.2d 1101 (5th Cir. 1980), noted that the right to retain counsel in civil litigation is implicit in the concept of due process. Necessarily included in the right to counsel is the right to have an attorney adequately prepare a litigant’s case and supply the “guiding hand of counsel at every step in the proceedings against him,” according to Potashnick. The right includes the right to the assistance of counsel in discovery proceedings.
However, the right to confer with counsel during a deposition can be limited to accommodate other considerations, such as preserving the integrity of the proceedings. One extreme case was a Florida personal injury lawsuit, where an attorney’s overly protective deposition objections regarding the circumstances of the accident prompted a Florida trial court to forbid the attorney from speaking with the witness, his client, on that particular topic until the witness could be re-deposed. On appeal, McDermott v. Miami-Dade County, 753 So. 2d 729 (Fla. Dist. Ct. App. 2000), the appellate court ruled that attorney-client privilege was not violated by the trial court’s order.
Across the country, the rules governing client communications during depositions strike a balance between the right to the assistance of counsel and the imperative of preserving the integrity of the deposition process. Conferences are allowed but not while a question is pending.
Washington State’s rule is representative. Washington Court Rule 30(h)(5) provides in relevant part:
- Private Consultation. Except where agreed to, attorneys shall not privately confer with deponents during the deposition between a question and an answer except for the purpose of determining the existence of privilege. Conferences with attorneys during normal recesses and at adjournment are permissible unless prohibited by the court.
In Texas, the rule is similar but accompanied by a mention of possible sanctions for violating the prohibition on communications with the witness.
Texas Rule 199.5(d) provides:
- Private conferences between the witness and the witness’s attorney during the actual taking of the deposition are improper except for the purpose of determining whether a privilege should be asserted. Private conferences may be held, however, during agreed recesses and adjournments.”
If an attorney engages in a prohibited private conference with a deposition witness, then “the court may allow in evidence at trial statements, objections, discussions, and other occurrences during the oral deposition that reflect upon the credibility of the witness or the testimony.”
In Michigan, Michigan Rule 2.306 specifically states that electronic communications between the deponent and counsel — such as text and email messages — are forbidden while a question is pending.
In the federal courts, Rule 30 of the Rules of Civil Procedure, which governs depositions, does not speak directly to the question of mid-deposition conferences between counsel and the deponent. Some district courts have adopted local rules to fill in the gap. For example, in the Southern District of New York, Local Civil Rule 30.4 provides:
Local Civil Rule 30.4. Conferences Between Deponent and Defending Attorney
- An attorney for a deponent shall not initiate a private conference with the deponent while a deposition question is pending, except for the purpose of determining whether a privilege should be asserted.
The drafting committee note accompanying Local Civil Rule 30.4 asserts the committee’s belief that “there is a broad consensus that it is improper for the deponent’s attorney to initiate a private conference with the deponent while a question is pending.”
The Secure Digital Breakroom
So … what’s an attorney to do to ensure that a remote deposition witness has the assistance of counsel during the deposition?
First, make sure that the rules governing the deposition provide the right to confer with counsel. If they are inadequate to protect the client’s interests, then be sure to have relevant language included in either a remote deposition protocol or a protective order. The American Bar Association’s recent publication of best practices for remote depositions advises attorneys to “consider a stipulation and order from the court specifically defining the conduct of the deposition including what counsel may and may not do during the deposition.”
The Southern District of New York suggests the following language:
- During breaks in the deposition, the Parties may use the breakout room feature provided by [SERVICE PROVIDER], which simulates a live breakout room through videoconference. Conversations in the breakout rooms shall not be recorded. The breakout rooms shall be established by [SERVICE PROVIDER] prior to the deposition and controlled by [SERVICE PROVIDER].
Second, when selecting a remote deposition provider, attorneys should make sure that the provider’s technology platform is sufficiently robust to deter data losses that could destroy attorney-client privilege during sidebar chats and that sidebars can be securely created without the assistance of the provider.
One such technology is Esquire Deposition Solutions’ eLitigate® remote deposition platform, an innovative technology solution purpose-built for remote depositions. eLitigate’s private sidebar breakrooms are non-discoverable by opposing parties and instantly accessible with a single click. With eLitigate, important off-the-record communications can be conducted in a secure environment that is completely under an attorney’s control. There is no need to request host support to create a secure sidebar breakroom on the eLitigate platform.
Esquire’s eLitigate remote deposition platform is built on top of a comprehensive data security framework that meets the legal industry’s strict standards. All data traffic — including text, audio, and video transmissions — are AES-256-bit encrypted from end-to-end.
When scheduling remote depositions and drafting protocols to govern the conduct of the deposition, careful counsel may wish to spell out explicitly the technology to be used and the data security safeguards that will be used to protect client confidential information.