“We Need a Break”

David Boies, representing the government in the Microsoft antitrust case, famously annihilated Bill Gates when he took Gates’ deposition. Scenes from the deposition can be viewed on YouTube. In his book Courting Justice, Boies commented on remedial action that he would have taken if he had represented Gates:

“It was an understatement to say I was puzzled by Gates performance. . . When a witness of mine begins to damage himself the way Gates was doing, I will either interrupt the deposition for a break to get the witness on track or admonish the witness on the record to listen to the question, be responsive, and not volunteer. . .”

To what extent, if at all, should counsel be able to consult with the deponent during a deposition? Will the court impose sanctions if counsel interrupts the deposition to consult with the deponent?

Consider the situation in New York. In 1990, a Federal Bar Council committee on the conduct of depositions, chaired by now Southern District of New York Judge Sidney H. Stein concluded that “[n]o subject . . . generated more controversy . . . than the question of the extent to which a witness should be permitted to discuss matters with his or her attorney during the conduct of the deposition.”

A 2002 New York State Bar Association on Federal Procedure Report similarly held: “There still is no consensus as to when it is appropriate for a deponent to consult with counsel, and, if consultation occurs, whether the content of that consultation should be subject to examination by the interrogator.” This Report found that there were only two principles that could be agreed upon:

“(1) There should never be a consultation while a question is pending, except for the purpose of ascertaining whether a privilege or other protection from discovery should be asserted.”

“(2) There may be unfettered consultation during overnight breaks in a deposition.”

The concerns expressed by the Committee were the usual two. First, that counsel would coach the witness and, second, that the break would interfere with the interrogator’s examination which could discover information and gain truthful answers

Committee members differed over other consultations. Some felt that consultation is appropriate to discuss harassment of the deponent and whether to suspend the deposition or to continue in light of the potential costs of suspending the deposition and seeking a remedy by the court. Some felt that consultation should be permitted because counsel and the deponent could expedite the correction of erroneous answers. Some felt that consultation should be permitted to alleviate stress on the witness and thereby produce truthful answers.

When I spoke with the Chair of the 2002 Committee, Gregory K. Arenson, he said the controversy continues to this day. He noted that practice varies around the state. It depends upon where you are in the state and in federal or state court. Counsel needs to know the controlling practice.

Clearly conferencing is fine when it is for a legitimate reason – privilege or to enforce a court order, and, on the other hand, consultation should not be permitted when a question is pending. Beyond those, what should be the universal principles?