It seems self evident (although maybe not in Florida — http://abovethelaw.com/2010/08/will-footsies-during-a-deposition-lead-to-sanctions/) that some types of behavior at a deposition are not acceptable. However, a question that constantly comes up is whether the lawyer can talk to her client during a break in the questioning. In the case of Chassen v. Fidelity National Title, a New Jersey federal court has just weighed in — http://pdf.wcmlaw.com/pdf/Chassen.pdf In Chassen, during a break in questioning, Fidelity’s lawyer answered various questions that her client had. When questioning resumed, the plaintiff’s counsel sought to question the witness about conversations she had with her attorney. The lawyer refused and the matter went to the judge. The trial judge held that under “Fed. R. Civ. P. 30(c), examination at a deposition is to proceed as it does at trial. In fact, “[d]uring a civil trial, a witness and his . . . lawyer are not permitted to confer at their pleasure during the witness’s testimony. . . The same is true at a deposition.” Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993). Moreover, counsel and witness are prohibited from engaging in private, off-the-record conferences during any breaks in a deposition, except for the purpose of deciding whether to assert a privilege.” Questioning about the lawyer’s conversation with her client were thus allowed. Keep this in mind next time a federal depositon comes round.
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