Brian Iverson Discusses Guidelines For Attorney-Client Discussions During Deposition Recesses

The increase in remote depositions during the COVID-19 pandemic has brought a new urgency to a question that has confused practitioners for decades: May an attorney communicate with a witness-client during a deposition recess? Bass, Berry & Sims attorney Brian Iverson analyzed the landscape and recommended best practices for dealing with this issue in an article for Today's General Counsel.

Brian's article highlighted "no-consultation" rules presently in place in several jurisdictions. These strict rules prohibit attorneys and their witness-clients from engaging in any private, off-the-record conferences during deposition breaks, except for the purpose of deciding whether to assert privilege. Many courts, however, have criticized this strict approach as impinging too far on the attorney-client relationship. As the case law has developed, federal courts have taken a wide range of approaches to address private, off-the-record communications, meaning there is not a