Michael J. Hutter Discussions With Your Client During a Deposition: An Unlimited Right?
A recent EDNY decision by U.S. Magistrate Judge James Wicks Judge Wicks is read-worthy as it provides a road-map for the assertion of the attorney-client privilege when the client as deponent is sought to be examined regarding what transpired and was said during a break in the client's deposition.
June 01, 2022 at 12:25 PM
11 minute read
An attorney has the right, if not ethical duty, to prepare his or her client for a deposition. As a commentator has observed: "American litigators regularly use witness preparation and virtually all would, upon reflection, consider it a fundamental duty of representation and a basic element of effective advocacy." Applegate, Witness Preparation, 68 Tex. L. Rev. 277, 278-279 (1989). Does this right and duty extend to the attorney consulting with his or her client during a deposition break? A recent commentary has noted "[t]here are few issues more fraught with controversy than the issue as to whether a defending attorney can consult with [his or her client] during a deposition break." Redmond, Advanced Topics in Oral Civil Discovery, 88 Def. Couns. J. 1, 17 (2021).
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