Things To Consider Before Counseling During Deposition

What should an attorney do in the middle of a deposition if her client answers in a way that suggests a misunderstanding of the question or a sudden loss of memory? She will likely want to confer with her client at the next available opportunity to get matters back on track, but her ability to do so without waiving privilege will depend, in part, on where the deposition is taking place.

Under the Federal Rules of Civil Procedure and Federal Rules of Evidence, courts have broad authority to control the discovery process, including depositions. Federal Rule of Civil Procedure 30(c) provides that the examination of a deponent must proceed as it would at trial. This rule, however, does not specifically address whether and when an attorney may confer with a client during a deposition.

This article was originally published in Law360 on October 3, 2013.

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