Can We Talk? Nationwide Survey Reveals Wide Range of Practices Governing Communication with Witnesses While Defending Their Deposition

This article is reprinted with permission from the December 2005 issue of The American Bar Association's Litigation Update.

When, if ever, is it appropriate to communicate during a deposition with a witness that you are defending, and for what purpose? This straightforward question, which is confronted every day in conference rooms around the country, has led to its share of squabbles among attorneys and countless transcript pages. It is not susceptible to a straightforward answer, and can vary widely by jurisdiction. While the Federal Rules of Civil Procedure offer no explicit guidance, a number of federal district courts have addressed the issue to some degree through local rules, as have a number of states, through rules or practice guides. There are also federal and state court decisions addressing the issue. In jurisdictions without any written guidance, customs and practices have developed to which members of the bar adhere—at least to some degree.

To gain a better understanding of this issue, we conducted a nationwide e-mail survey of our Committee’s membership to find out the law, rules or practice in each state for communicating with witnesses while defending their deposition.