Hall v. Clifton Precision
27 Fed. R. Serv. 3d 10, 1993 U.S. Dist. LEXIS 10782, 150 F.R.D. 525 (1993)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
During a deposition, a lawyer and their client do not have an absolute right to confer privately, including during recesses or when reviewing documents presented for questioning, unless the conference is for the sole purpose of determining whether to assert a privilege.
Facts:
- Robert F. Stewart, counsel for the defendant, noticed the deposition of the plaintiff, Arthur J. Hall.
- Before the deposition began, Mr. Hall’s counsel, Joel W. Todd, asked Mr. Stewart for copies of all documents Mr. Stewart intended to show Mr. Hall, so Mr. Todd could review them with Mr. Hall beforehand.
- Mr. Stewart declined to provide the documents to Mr. Todd for pre-deposition review with Mr. Hall.
- At the start of the deposition, Mr. Stewart instructed Mr. Hall to ask him for clarification on any questions Mr. Hall did not understand.
- Mr. Todd then interjected, telling Mr. Hall that he could stop and talk to Mr. Todd at any time during the deposition.
- During the unfinished deposition, Mr. Hall and Mr. Todd privately conferred at least twice: once when Mr. Hall wished to discuss the meaning of 'document,' and again when Mr. Stewart presented a document to Mr. Hall, and Mr. Todd insisted on reviewing it with his client before questioning.
- Mr. Stewart objected to Mr. Todd reviewing with Mr. Hall documents that Mr. Hall was about to be questioned on during the deposition.
Procedural Posture:
- Robert F. Stewart, counsel for the defendant, noticed the deposition of the plaintiff, Arthur J. Hall.
- During the brief, unfinished deposition of Mr. Hall, his counsel, Joel W. Todd, interjected, telling Mr. Hall he could stop and talk to him at any time, which Mr. Stewart objected to.
- The deposition was interrupted twice for private conferences between Mr. Hall and Mr. Todd, once regarding the meaning of a word and again when Mr. Stewart presented a document for questioning.
- Mr. Stewart objected to Mr. Todd reviewing documents with Mr. Hall that Mr. Hall was about to be questioned on.
- The parties contacted the court, which ordered the deposition adjourned until the question of attorney-client discussion during the deposition could be resolved.
- The court subsequently held a conference with both counsel regarding their conduct at the deposition.
- At the conclusion of the conference, the court requested counsel to submit letter briefs on the issue.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
1. Does a lawyer have the right to confer privately with a client during the client's deposition, including during recesses or when documents are presented for questioning, for purposes other than asserting a privilege? 2. Does a lawyer have the right to inspect and review all documents with their client before the deposition begins, when opposing counsel intends to show those documents to the client during the deposition?
Opinions:
Majority - Gawthrop, District Judge
No, a lawyer and client do not have an absolute right to confer privately during the client's deposition for purposes other than asserting a privilege, nor does a lawyer have the right to pre-review documents with a client that will be shown during the deposition. The court holds that its broad authority and discretion to control discovery under Federal Rules of Civil Procedure 26(f), 30, 37(a), and 16 empower it to regulate attorney conduct at depositions. The court emphasizes that depositions are intended to elicit the witness's unvarnished testimony, akin to trial testimony where attorneys and witnesses do not confer during examination. Allowing private conferences, whether initiated by counsel or the witness, undermines the truth-seeking purpose of discovery by providing opportunities for coaching or altering testimony. This prohibition extends to recesses during the deposition and to discussions about documents presented during questioning. The only exception is for conferences to determine whether a privilege should be asserted, as privileges are violated by disclosure itself and require immediate consultation; however, such conferences must be noted on the record with their subject and outcome. Furthermore, attorneys' objections must be concise, non-argumentative, and non-suggestive, and counsel may not direct a witness not to answer a question unless asserting a privilege or enforcing a court-ordered limitation on evidence. The court views depositions as critical factual battlegrounds where attorneys act as officers of the court and must avoid conduct that obstructs the truth-finding process.
Analysis:
This case significantly clarified and restricted attorney-client interaction during depositions, establishing a widely adopted standard for conduct. By limiting private conferences to privilege issues and prohibiting suggestive objections, the court aimed to preserve the integrity of deposition testimony as the witness's uncoached recollection. The 'Hall Rule' (or 'Clifton Precision Rule') emphasizes the truth-seeking purpose of discovery over a broad interpretation of the right to counsel during active testimony, setting a precedent that continues to shape deposition practice in federal courts nationwide. It served as a powerful reminder that discovery is not a game of strategizing answers but a search for facts, imposing clearer ethical boundaries on lawyers during this crucial stage of litigation.
