Until medical science develops the eight-hour bladder, there will be breaks during depositions. And during breaks, there will be conversations between witnesses and their lawyers.
But whether you can have those conversations — and keep those conversations private — may depend upon the state in which your deposition occurs. In Ecker v. Wisconsin Central Ltd., 2008 U.S. Dist. Lexis 121200 (E.D. Wis. 2008), the court found that there is nothing improper about exchanges — privileged exchanges — between witnesses and their lawyers during breaks. But recently, in Chassen v. Fidelity National Title Ins. Co., 2010 U.S. Dist. Lexis 141852 (D.N.J. 2010), the court found that such conversations are improper, and to the extent that they occur, they are not privileged and are subject to discovery.
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