Depositions are a routine part of litigation, but they are not without risk.

There are a number of high-profile decisions in which lawyers have been sanctioned or punished by courts for improper conduct during a deposition. Courts take these issues seriously: Attorneys can create serious risks for themselves and their clients if they are ignorant of, or worse, intentionally disregard the rules governing proper deposition conduct.

Sanctions for such conduct can be severe, ranging from monetary fines to a bar grievance. Below are some tips for lawyers to help stay out of trouble in advance of and during a deposition.

Consult the Rules Prior to the Deposition

Many jurisdictions have adopted rules or guidance regarding what is considered appropriate conduct during a deposition. Therefore, before attending a deposition, it is helpful to review the relevant rules that may address the appropriate scope and nature of objections in depositions or related motions practice.

Rules 30 and 32 of the Federal Rules of Civil Procedure set forth some of the type and nature of permissible objections, provide the basis for motions to terminate or limit a deposition and address waiver of certain objections. The specific court in which the case is pending may also have adopted specific guidelines to govern depositions and the conduct of lawyers and witnesses during that conduct.

The rules and guidelines of the jurisdiction will help provide some guidance regarding what constitutes appropriate conduct. As many practitioners can appreciate, however, there can be significant judgment calls made regarding whether a lawyer is acting appropriately during a deposition. It is not always black and white.

Preparing the Witness for the Deposition

A deposition can be a stressful situation for the witness and the lawyer. But that stress can be exacerbated (again, for both witness and lawyer) if the witness is not well prepared. Preparing a witness can involve educating the witness about the process or reviewing key documents. But it is critical that attorneys stay on the right side of the ethical rules in preparing witnesses to provide testimony. Questionable or sometimes sanctionable conduct can arise long before the witness takes the oath and testifies.

Although it is common for lawyers to conduct predeposition prep sessions for a witness, most lawyers will take steps to avoid inadvertently (or intentionally) “coaching” a witness. It is routine for lawyers and witnesses to practice questions in advance or for lawyers to provide constructive feedback to witnesses, but it is generally considered improper for a lawyer to script a witness’ response that is contrary to the facts.

Indeed, Rule 3.3 of the Georgia Rules of Professional Conduct states that a “lawyer shall not knowingly … offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures;” Comment [1] states that Rule 3.3 applies whenever the lawyer is representing a client in an ancillary proceeding, such as a deposition.

Comment [10] to the rule dictates the “reasonable remedial measures” that the attorney must take if a client testifies falsely—and the attorney knows that the testimony is false. The attorney must first “remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client” cooperation with respect to the withdrawal or correction of the false statements or evidence.”

If unsuccessful, the lawyer can consider withdrawing from the representation or, if withdrawal is not permitted, disclose to the court sufficient information “as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6.” At that point, the proper recourse is left to the discretion of the court.
By stressing the importance of truthful testimony to the witness in advance, however, the lawyer may be able to avoid this difficult situation.

Conferences With Witnesses During Depositions

One gray area of deposition conduct is whether the attorney may confer with the deponent during the deposition and, if so, the extent of permissible discussions. The rules vary by jurisdiction. Some courts follow Hall v. Clifton Precision, 150F.R.D. 525 (E.D. Pa. 1993), which draws a bright-line, “no conference” rule. The Hall court reasoned in part that “private conferences … tend, at the very least, to give the appearance of obstructing the truth.”

The majority of jurisdictions, however, follow a less-strict approach, prohibiting conferences only when a question is pending (with some limited exceptions). Some jurisdictions, like Nevada, permit the attorney to confer with a witness on any subject during an unrequested recess, but only permits a requested break to discuss whether to assert a privilege. Where breaks are permitted, some jurisdictions caution that the subject matter discussed is discoverable unless otherwise privileged.

If the court or jurisdiction is silent on the matter, Rule of Professional Conduct 3.4 generally prohibits assisting a witness to testify falsely or to obstruct another party’s access to evidence. Comment [1] to the rule notes that “improperly influencing witnesses” is a threat to fairness in the adversary system.

If further instruction would be helpful to the parties to litigation, they may consider whether it would be appropriate to request that the court enter an order setting forth deposition guidelines that address attorney-client conferences during a deposition. In Georgia, some courts have entered orders containing deposition guidelines that prohibit private conferences between deponents and their attorneys during the actual taking of the deposition, except for the purpose of determining whether a privilege should be asserted.

By being mindful of these issues, lawyers can reduce the risk of sanctions, a deposition do-over or an unhappy client.