Improper coaching of the deponent generally occurs in one of these two situations:
- Defending counsel interjects commentary after the examiner’s questions, or objects to questions in a way that suggests a particular response to the deponent.
- The deponent repeatedly confers privately with defending counsel before answering a question.
These situations can be addressed by taking the following three steps:
1. Anticipate problems. Anticipating such problems as unreasonably frequent interruptions for conferences between defending counsel and the deponent can often prevent them. You can try something as simple as announcing, as the deposition begins, that two short recesses will be taken, e.g., at 10:00 a.m. and 11:00 a.m., to avoid recesses for private conferences at the whim of the deponent or defending counsel.
2. Start with a warning. If interjected commentary by defending counsel or frequent conferences are a problem, warn the deponent and defending counsel that their conduct will make it necessary to adjourn the deposition to enable you to move for a protective order. See CCP §2025.420.
3. Make a record. If a warning doesn’t stop the improper coaching, work on making sure that the evidentiary record will support a motion for a protective order. For example, if private conferences between the deponent and defending counsel become so frequent that they interfere with your ability to obtain testimony, state on the record the time that each conference begins and ends.
Coaching the witness generally occurs when the defending counsel is representing a party deponent. But a situation similar to both “coaching” and “instructing the witness” can also occur when the deponent is a nonparty appearing without counsel at the deposition. For example, counsel in Sabado v Moraga (1987) 189 CA3d 1 gave advice about the marital privilege to an unrepresented witness and as a result, the deponent refused to testify. The appellate court reversed an award of sanctions under CCP §128.5 based on counsel’s advice, but stated that sanctions might be justified “if an attorney offers meritless legal advice to a witness which results in a delay of the proceedings.” 189 CA3d at 9. Although the defending counsel in Sabado had no duty to notify the examiner before the deposition of his intention to advise the witness on the marital privilege, the court observed that professional courtesy might have dictated otherwise. 189 CA3d at 11.
For everything you need to know about taking and defending depositions, turn to CEB’s California Civil Discovery Practice, chap 6, and Handling Depositions (Action Guide). Learn how to how to prepare yourself to depose a witness confidently and remain ethical and professional throughout the process in CEB’s CLE program Preparing for and Taking a Deposition, available On Demand.
Check out these other CEBblog™ posts on depositions.
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