Give Me a Break: Regulating Communications Between Attorneys and Their Witness-Clients During Deposition Recesses
40 Pages Posted: 3 Jul 2023 Last revised: 9 Nov 2023
Date Written: June 23, 2023
Civil depositions typically include periodic breaks, and many attorneys naturally want to discuss the testimony with their witness-clients during those breaks. With the increase in remote depositions during the COVID-19 pandemic, an attorney and witness-client may wish to communicate even more frequently, for example, by exchanging text messages during the questioning. Case law varies greatly by jurisdiction and does not provide clear guidance on what types of communications during a deposition are permitted. This Article reviews the existing authorities, policy rationales, and other scholarly proposals before recommending an amendment to the Federal Rules of Civil Procedure to provide greater clarity and predictability to attorneys and their witness-clients.
Keywords: Litigation, Civil Litigation, Federal Rules of Civil Procedure, Civil Procedure, Depositions, Legal Ethics, COVID-19, Remote Depositions
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