Tag Archives: Deposition

Five Years Of The Litigators’ Blog

It’s hard to believe that this blog marks the five year anniversary of our inception of the Litigators’ Blog. We have tried over the last five years to provide you, our readers, with the most current developments-of-interest to Massachusetts litigators. We have sought to inform, and, when appropriate, offer insight and advice, on the significance of recent developments in the law.

Our latest blog, for example, discusses a recent Appeals Court case involving a general release which a party sought to avoid, advising caution when one seeks more than a straightforward general release of liability in a document.

We have given advice on a wide range of topics — how to access your client’s insurance policy even when the insurer agrees to defend the insured without a reservation of rights, how a non-party to an arbitration agreement can compel an adversary to arbitrate, how to avoid forfeiting an affirmative defense, how to avoid sanctions for deposition communications, and how to draft a settlement agreement to provide a mechanism to best enforce its terms. We have discussed the possibility that a stipulation of the parties will not be enforced, the scope of the new federal discovery Rule 26, and the value of a motion in limine.

From time to time we have talked about our travels, including a six-city, seven-day trip to see major league baseball games, and a hike to the summit of Mount Katahdin in Maine. Occasionally we have commented on current events, as when we gave our perspective as litigators on the Tsarnaev trial.

We hope you have found our blogs to be informative and perhaps even moderately entertaining. We certainly have enjoyed posting them.

This is as good a time as any to acknowledge the invaluable support of Jackie White, who makes sure our blogs are prepared and posted on time, our secretary, Rachel Hendley, and our indomitable editor and partner, Liz Ross.

And now, on to the next five years of the Litigators’ Blog.

Superior Court Judge Outlines Rules for Deposition Communication Between Attorney and Client

What communication is permissible between a lawyer and his or her client once a deposition commences? In a recent Superior Court case, Chesbrough v. Life Care of America, Inc., (Feb. 14, 2014) (Gordon, J.), the court squarely addressed this issue, adopting a middle-of-the-road approach, rejecting a restrictive rule that would have permitted essentially no intra-deposition communication between lawyer and client, but also imposing limits on the nature and extent of permissible communication in an effort to minimize the potential for improper witness coaching by lawyers.

In Chesbrough, plaintiff demanded the right to question a defendant/deponent regarding his communications with his lawyer during a deposition break after which the defendant changed his prior deposition testimony. The Court specifically noted that this was not a classic case of abuse by the witness’s attorney, who had not called the unexpected recess which lasted only two minutes.

The Chesbrough court rejected the most restrictive view, articulated in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D.Pa. 1993), which essentially prohibits all substantive communication between lawyer and client once a deposition has begun — even communication during scheduled recesses for meals and overnight. However, sensitive to concerns about potential improper coaching, the Chesbrough court did limit the nature and extent of permissible communication by adopting the following rules:

  • Neither lawyer nor witness may confer (other than concerning a decision about whether to assert a privilege) while a deposing lawyer’s question is pending.
  • Neither lawyer nor witness may request or initiate a break or recess for the purpose of conferring about the substance of a witness’s testimony (other than concerning a decision about whether to assert a privilege) in the middle of a deposing lawyer’s line of questioning into an identifiable subject matter.
  • Lawyer and witness may otherwise confer on any matter during all scheduled and unscheduled deposition breaks and recesses. However, if following any break or recess, a deposing lawyer has a good faith basis to believe that inappropriate witness coaching on matters of substance has occurred, he may make inquiry of the witness into the circumstances and subject matter of the same, and require that any claims of privilege interposed to justify a refusal to answer be set forth on the record, including an acknowledgement that a conference with counsel was held, the subject matter (but not substance) of the conference to which privilege is claimed and the time, place and participants in the conference.

While not binding precedent, the Chesbrough decision does reinforce the obvious: That lawyers must ensure that their clients are well-prepared for a deposition before it begins.