11 Trial Lawyer • Winter 2024 See Privileges p 12 limited exception. Hall, supra, 1993 US Dist LEXIS 10782 at 7. The Hall court reasoned that a lawyer has a right, if not a duty, to prepare the client. But once a deposition begins, the right to counsel is tempered by the underlying goal of discovery: to get to the truth. Once witnesses take the stand, they are on their own. Hall, supra, 1993 US Dist LEXIS 10782 at 7. The prohibition against private conferences applied to both conferences requested by the lawyer and those requested by the client. Id. When conferences between the witness and lawyer occur during the deposition or during recesses in violation of this guideline, the court found such conferences are not covered by the attorney client privilege at least as to what the attorney said. Thus, the court described these conferences as ‘fair game’ for inquiry by the deposing attorney to ascertain whether there was coaching and, if so, what. Id. At n. 7. The Hall court found that private conferences between an attorney and a client are permissible during a deposition for the limited purpose of deciding whether to assert a privilege. When such a conference occurs, the conferring attorney should place on the record the fact that the conference occurred, the subject of the conference, and the decision reached as to whether to assert a privilege. Hall, supra, 1993 US Dist LEXIS 10782 at 8. Next, the Hall court stated that when an attorney presents a document to a witness in a deposition, the attorney is entitled to have the witness, and the witness alone, answer questions about the document. The witness’s lawyer should be given a copy of the document, but the court ruled that the witness and lawyer may not confer about the document before the witness answers questions about the document. If the witness does not recall having seen the document or does not understand the document, the witness can ask the deposing lawyer for more information, or simply testify to a lack of knowledge or understanding. Hall, supra, 1993 US Dist LEXIS 10782 at 7. On the record After addressing “off the record” coaching, the court turned to the subject of “on the record” coaching. The court stated that: [a] deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers. Hall, supra, 1993 US Dist LEXIS 10782 at 6. The court noted that most objections, such as those grounded in relevance or
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