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.