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(Discoverability of Conversations During Deposition Breaks)

Let’s pretend that your client needs a restroom break during a deposition and there is no question pending (thus, not triggering an In Re Stratosphere Corporation, 182 F.R.D. 614 (D. Nev. 1998) problem).  You and your client requested a break.  Before going back into the deposition, you remind your client about the training you gave him to answer only the question asked and not to volunteer information.  You also tell him to beware if opposing counsel asks questions about that smoking gun document that he pay special attention to the second paragraph.  Under a recent Nevada decision, no privilege would attach to that conversation, meaning your client could and would be forced to divulge the contents of that conversation if the examining attorney is aware of the decision.

The Nevada Supreme Court, in Coyote Springs Inv., LLC v. Eighth Judicial Dist. Ct., 347 P.3d 267 (2015) held that communications between counsel and client during a requested break in the deposition was not privileged.  This holding applies to any break requested by the deponent or his counsel, including bathroom breaks, smoke breaks, lunch breaks, or even breaks where the deposition is continued to the next day (or weeks later).

The result of this holding is that the careful practitioner will work with the examining attorney to stipulate on the record that a break was not “requested” by the deponent or his/her counsel, or in the alternative that the break does not constitute a “requested recess” and therefore there is no waiver of privilege and all parties stipulate that the privilege attaches to any conversations until the deposition is resumed.  To do otherwise exposes all conversations (including those over periods of days or weeks if a deposition is continued and not concluded at the end of the day) to disclosure.

The Court specifically held:

attorneys may confer with witnesses during an unrequested recess or break in a discovery deposition. See id. Furthermore, we hold that attorneys may not request a break to confer with witnesses in a discovery deposition unless the purpose of the break is to determine whether to assert a privilege. Id. We additionally hold that once the deposition proceedings resume after a private conference that is requested to determine whether to assert a privilege, the attorney must place the following on the record: (1) the fact that a conference took place; (2) the subject of the conference; and (3) the result of the conference, specifically, the outcome of the decision whether to assert a privilege. See id. at 621–22; see also Hall, 150 F.R.D. at 530. We stress that counsel must make a record of the confidential communications promptly after the deposition resumes in order to preserve the attorney-client privilege.

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on business law, business litigation, and acting as an Arbitrator and Mediator. Peers have named him an AV-Rated Lawyer, Best Lawyers, a Top 100 Super Lawyers in the Mountain States multiple years, and to the Legal Elite and Top Lawyers lists for many years. Mr. Young has been appointed a part time Judge, a Special Master to the Clark County, Nevada Business Court, as an arbitrator by the Nevada Supreme Court. He has been appointed as an arbitrator or mediator of well over 250 legal disputes from business disputes to personal injury matters. He has been named Best Lawyers for Arbitration. Mr. Young is a respected author of ten books, including A Litigator’s Guide to Federal Evidentiary Objections, A Litigator’s Guide to the Federal Rules of Evidence, and the Federal Court Civil Litigation Checklist.
Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.