More Thoughts on Deposition Privileges after Coyote Springs

Coyote Springs Inv. v. Dist. Ct., 131 Nev. Adv. Op. 18 (2015) was published on April 2 and was discussed here. The case considered the extent to which communications between attorneys and deponents are privileged during deposition breaks. It has generated a great deal of discussion. This post addresses three of the snippets I have received or overheard.

At the beginning of a deposition, agree to a break schedule so as to avoid a “requested” break.

From a practical matter, this seems silly to me. I have difficulty concluding the Supreme Court of Nevada intended to turn depositions into bladder strength contests because any “requested” break voids attorney-client privilege. Instead, “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.” Coyote Springs did not ban breaks for other purposes.

Coyote Springs explicitly overruled In Re Stratosphere regarding whether or not a question was pending, requiring any communications during any break to be disclosed.

I disagree based upon the language in the case.

We agree with the reasoning in In re Stratosphere that Hall’s discovery guidelines — which essentially preclude conversations between counsel and witness at any point between the start of depositions until trial when they involve an issue beyond whether to exercise a privilege — are unnecessarily restrictive. Although the holding in In re Stratosphere was limited to unrequested recesses, to the extent that the In re Stratosphere court appeared to approve of witness-counsel conferences during requested breaks so long as the break did not occur in the middle of questioning, we decline to adopt that reasoning here.

What do I do during the middle of a deposition if this issue comes up?

The same thing you should be doing anyway: preserve the record and, if possible, call a discovery commissioner to hopefully resolve the issue over the phone.