Since the early 2000's, the District of Delaware local rules have prohibited talking to a witness about the subject matter of their deposition testimony during a deposition:
RULE 30.6. Depositions Upon Oral Examination.
From the commencement until the conclusion of deposition questioning by an opposing party, including any recesses or continuances, counsel for the deponent shall not consult or confer with the deponent regarding the substance of the testimony already given or anticipated to be given, except for the purpose of conferring on whether to assert a privilege against testifying or on how to comply with a court order.
It's not uncommon for visiting counsel defending depositions in Delaware cases to not know this rule. Which can lead to some fun questions the first time they come back from a break in the deposition.
Back in 1990, before the rule, Judge Schwartz held that a deponent may not discuss the substance of testimony with counsel, and issued an opinion setting out exactly how the post-break questions should go:
A. Did you consult with your attorney . . . during the recess and/or continuance?
B. Did you consult with said person regarding . . . deposition testimony either given and/or expected . . . ?
C. Did you consult with said person . . . . regarding how you should answer questions during the remainder of the deposition?
D. About what areas of your testimony already given and/or expected . . . did you consult with said person?
Robert M. Deutschman v. Beneficial Co., C.A. No. 86-595-MMS (D. Del. Feb. 20, 1990) (instructions between questions omitted).
The purpose of the questions is to "get on the record any instances of improper coaching."
It's an unpublished decision, and not on Lexis, but it bounces around at depositions from time to time. And, obviously, that line of questions can result in some useful information.
Judge Hall Suggests Similar Questions, For the Same Reason
I thought to post about this because I saw that Judge Hall recently addressed Rule 30.6 in a discovery dispute conference.
There, the question was whether Rule 30.6 prevented plaintiff from talking to its witness during the course of a series of depositions by separate defendants—she held that it does not.
But she also set forth the questions that can be asked even absent the application of Rule 30.6, generally mirroring those from the 1990 Deutschman case (even though that case was not cited by the parties):
You can ask if plaintiff consulted with [the deponent] prior to the deposition. If that answer is yes, you can ask whether [the deponent] consulted with counsel for plaintiff regarding testimony she has already given. You can't ask what was said. And you can ask about which areas of the testimony already given was the consultation. You can't ask what was said. And you can make a record that this happened.
She then suggested using the resulting testimony at trial:
If, for whatever reason, [the deponent] presents diametrically opposed testimony, then you can try to make some hay with Judge Stark at trial, because I understand this is going to be a bench trial. . . . You can make this record. I hope that was clear to everyone.
It's good to see that this line of questions—originally set out by Judge Schwartz over 30 years ago—remains valid and appropriate.
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