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Hall v. Clifton Precision

United States District Court for the Eastern District of Pennsylvania

July 29, 1993, Decided ; July 29, 1993, Filed; July 30, 1993, Entered



 [*526] OPINION

Gawthrop, J.

July 29, 1993

Currently at bar is an issue on which, despite its presence in nearly every case brought under the Federal Rules of Civil Procedure, there is not a lot of caselaw: the conduct of lawyers at depositions. More specifically, the questions before the court are (1) to what extent may a lawyer confer with a client, off the record and outside earshot of the other lawyers, during a deposition of the client, and (2) does a lawyer have the right to inspect, before the deposition of a client begins, all documents which opposing counsel intends to show the client during the deposition, so that the lawyer can review them with the client before the deposition?

In this case, Robert F. Stewart, Esquire, counsel [**2]  for defendant, noticed the deposition of the plaintiff, Arthur J. Hall. Before the deposition began, Mr. Hall's counsel, Joel W. Todd, Esquire, asked Mr. Stewart for a copy of each document which Mr. Stewart intended to show Mr. Hall during the deposition so that he could review the documents with Mr. Hall before the deposition began. Mr. Stewart declined to produce the documents.

At the beginning of the deposition, Mr. Stewart described the deposition process to Mr. Hall. During that description, he told Mr. Hall, "certainly ask me to clarify any question that you do not understand. Or if you have any difficulty understanding my questions, I'll be happy to try to rephrase them to make it possible for you to be able to answer them." Deposition of Arthur J. Hall, at 5-6. Mr. Todd then interjected, "Mr. Hall, at any time if you want to stop and talk to me, all you have to do is indicate that to me." Id. at 6. Mr. Stewart then stated his position: "this witness is here to give testimony, to be answering my questions, and not to have conferences with counsel in order to aid him in developing his responses to my questions." Id.

During the brief, unfinished deposition, there were [**3]  two interruptions. The first occurred when, according to Mr. Todd, Mr. Hall wished to confer with him about the meaning of the word "document." Nevertheless, when the deposition resumed, Mr. Hall asked Mr. Stewart about the meaning of "document." Id. at 9-10. The second interruption occurred when Mr. Stewart showed a document to Mr. Hall and began to ask him a question about it. Before Mr. Stewart finished his question about the document, Mr. Todd said, "I've got to review it with my client." Id. at 18. Mr. Stewart stated his objection "to Mr. Todd reviewing with his client documents that Mr. Hall is about to be questioned on in this deposition." Id. The parties then contacted the court, which ordered that the deposition be adjourned until the question of attorney-client discussion during the deposition could be resolved. That afternoon, the court held a conference with both counsel about their conduct at the deposition. At the conference, Mr. Todd asserted that an attorney and client have the right to confer with one another at any time during the taking of the client's deposition. At the end of the conference, the court requested counsel to submit letter briefs on the issue,  [**4]  which they have done.

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150 F.R.D. 525 *; 1993 U.S. Dist. LEXIS 10782 **; 27 Fed. R. Serv. 3d (Callaghan) 10



deposition, conferences, discovery, questions, deponent, deposing, lawyers, documents, initiated, interrupt, guidelines, parties, courts, witness testimony, recesses, answers, Cases

Civil Procedure, Discovery, Methods of Discovery, General Overview, Discovery & Disclosure, Protective Orders, Depositions, Oral Depositions, Pretrial Matters, Conferences, Parties, Pro Se Litigants, Criminal Law & Procedure, Counsel, Right to Counsel, Evidence, Privileges, Attorney-Client Privilege, Waiver, Attorneys, Legal Ethics, Client Relations, Duties to Client, Effective Representation, Exemptions, Prior Statements, Credibility of Witnesses, Impeachment, Prior Inconsistent Statements, International Law, Foreign & International Immunity, Privileged Communications