Your client’s deposition is being taken in Manhattan in connection with a litigation pending in another jurisdiction. The attorney conducting the deposition has gotten your client to back away from a series of recollections by showing that she does not recall every detail of the event. You know that testimony about a key meeting is coming up after the lunch break, and that your client recalls some but not all of what took place at the meeting. During the lunch recess, are you permitted to refocus your client? Discuss with her how to respond more effectively to this attorney’s particular questioning style and tactics? Run her through some mock “Q & A” to help her prepare for the critical line of examination ahead?

Surprisingly, the answer may depend on where the litigation is pending. If the case is in the U.S. District Court for the Southern District of New York, you would likely be on safe ground. But if this case is pending in the districts of New Jersey, Pennsylvania or Delaware—beware. Those jurisdictions (and others) restrict, to varying degrees, contact between a deposition witness and her attorney while the deposition is ongoing. Moreover, courts in some jurisdictions with such “no-consultation” rules have interpreted them to hold that private attorney-client conversations during breaks and recesses are not privileged, permitting examination of a witness on the content of such discussions to determine whether forbidden “witness coaching” has occurred.

Federal and Local Rules

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