A well-prepared deposition witness understands the deposition process; testifies based on recollection, not speculation; and is forewarned as to possible areas of vulnerability. Preparing your client for a deposition is facilitated by the confidentiality protections afforded the attorney-client relationship. Witness preparation becomes far more complicated, however, when the witness is not your actual client. As several recent cases from the U.S. District Court for the Southern District of New York make clear, deposition preparation sessions with non-clients may not be afforded confidentiality protection.
Former Employees
Two recent cases explore the application of the attorney-client privilege and work-product doctrine to witness-preparation sessions with a former employee. In the first, Gary Friedrich Enterprises v. Marvel Enterprises,1 Southern District Magistrate Judge James C. Francis IV upheld Marvel’s assertion of attorney-client privilege to protect from disclosure its communications during a preparation session with a former employee of a predecessor entity. Marvel was defending against claims that it had misappropriated comic-book stories and characters that one of the plaintiffs claimed to have developed. At the deposition, plaintiffs asked the former employee about his communications with Marvel’s attorneys. Marvel directed the witness not to answer, asserting the attorney-client privilege.
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