10 Trial Lawyer • Winter 2024 By Stephen Brischetto What is on your list of most irritating deposition behaviors of opposing counsel? Here is mine: (1) a witness who “clarifies” their testimony after a break requested by their counsel; (2) attorneys who interrupt to say they don’t understand my question; (3) attorneys who direct a witness not to answer a question but do not assert a privilege; and (4) attorneys who make a short objection to a question and then say, “you can answer the question if you recall.” The question for every attorney conducting depositions is when to approach the court to seek an end to this conduct. Hall v. Clifton Precision, 150 FRD 525, 1993 US Dist LEXIS 10782 (ED Penn 1993 July 30, 1993) is an excellent place to start if you are considering a Stephen Brischetto motion for a protective order to deal with these kinds of issues. The facts in Hall are relatively simple to digest. In Hall, the defense counsel noticed the plaintiff’s deposition. Prior to the deposition, the plaintiff’s attorney requested a copy of the documents the defense counsel intended to use in the deposition and the defense counsel declined the request. At the commencement of the deposition, the defense counsel explained the deposition process to the plaintiff and the plaintiff’s counsel interjected telling the witness, “anytime you want stop and talk to me, all you have to do is indicate that to me. Hall, supra, 1993 US Dist LEXIS 10782 at 5, During the deposition, the plaintiff’s counsel interrupted the questioning twice, first to confer with his client about the meaning of the word “document” and next seeking a break to read and confer with the lawyer’s client about a document the defense counsel presented in the deposition. At this point, the parties called the court and the court ordered the deposition adjourned until the question of the attorney client discussions could be resolved. Id. After convening a hearing, the court issued an order governing the conduct of oral depositions for the balance of the case. The court found authority in FRCP 26(f) to “set limitations on discovery” and manage discovery to prevent abuse of the process, in FRCP 30(c) to limit the scope of a deposition to prevent depositions from being conducted in bad faith and in FRCP 30(a)(2) &(3) to compel a deponent to give more complete or less evasive answers. Hall, supra, 1993 US Dist LEXIS 10782 at 5. Based upon these three procedural rules, the Hall court set forth nine guidelines governing the conduct of depositions in the case, and an opinion and order explaining the guidelines. The court’s guidelines control what the court described as “off the record” and “on the record” coaching. Under the Hall court’s guidelines, the court directed the deposing the attorney to begin the deposition by instructing the witness to “ask deposing counsel, rather than the witness’s own counsel, for clarifications of any word, questions or documents presented during the course of the deposition” and directed the witness to abide by these instructions. Hall, supra, 1993 US Dist LEXIS 10782 at 9. Subsequently, the court set forth limitations on the behavior of counsel defending depositions and their clients. Off the record The most significant provisions of the court’s opinion and order governs conferences between attorneys and the deposed client during the deposition and during recesses — “off the record” coaching. The Hall court prohibited conferences between witnesses and their lawyers both during the deposition and during recesses (including coffee breaks, lunch recess and evening recess) except for a Privileges in Depositions
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