12 Trial Lawyer • Winter 2024 Privileges Continued from p 11 materiality are preserved for trial and thus need not be made. As for those objections that are waived if not made, they should be stated “pithily.” Hall, supra, 1993 US Dist LEXIS 10782 at 9. The court noted that a, “favorite objection or interjection of lawyers is, ‘I don’t understand the question, therefore the witness doesn’t understand the question.’” The court held that a lawyer’s purported lack of understanding is not a proper reason to interrupt a deposition and “counsel are not permitted to state on their record their interpretations of questions, since those interpretations are irrelevant and often suggestive of a particularly desired answer.” Hall, supra, 1993 US Dist LEXIS 10782 at 8 n. 10. The court stated that the rules of trial testimony precluded lawyers from interrupting testimony to make statements at trial and the same rules should apply in depositions. The court specifically prohibited comments on the record or off the record that might suggest or limit a witness’s answer to an unobjectionable question. Hall, supra, 1993 US Dist LEXIS 10782 at 9. During the break The Hall decision is not an outlier by any means. A number of courts have adopted parts or all of the deposition guidelines set forth in Hall. BNSF Ry Co. v. San Joaquin Valley RR Co, 2009 US Dist LEXIS 111569 at 3-4 (ED CA Nov 17, 2009)(citing Hall, precluding counsel from conferring during breaks except to discuss a privilege and awarding sanctions against counsel who made suggestive objections and some suggestions appeared in witness’s testimony and who took unscheduled break when a question was pending); United States v. Morris, 212 FRD 418, 2002 US Dist LEXIS 9173 at 5 (DCDC May 17, 2002)(holding deponent and counsel have no right to confer except to determine existence of privilege and prohibition may extend to breaks, lunch or overnight but if break is longer court must balance considerations); Plaisted v. Gelsinger Med Cnr, 210 FRD 527, 2002 US Dist LEXIS 19842 at (MD Penn October 15, 2002(adopting Hall guidelines for Middle District of Pennsylvania and holding guidelines remain in effect after amendments to the Federal Rules of Civil Procedure); Vestin Realty Mortg, Inc. v. Klass, 2010 US Dist LEXIS 113555. (SD Cal October 25, 2010)(adopting “Clifton Order” upon finding inappropriate deposition conduct) There is a line of cases that state the Hall court’s prohibitions on conferrals went to far. The leading case on point is in re Stratosphere Corp Securities Litigation, 182 FRD 614, 621 (D Nev 1998). The Stratesphere court agreed with the goal of preventing coaching but found the Hall court’s requirements too strict. The Stratosphere court held: This court will not preclude an attorney, during a recess that he or she did not request, from making sure that his or her client did not misunderstand or misinterpret questions or documents, or attempt to help rehabilitate the client by fulfilling an attorney’s ethical duty to prepare a witness. So long as attorneys do not demand a break in the questions, or demand a conference between questions and snawers, the court is confidential that the search for truth will adequately prevail.
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