During a deposition, the client gives an answer that suggests a misunderstanding of the question or only a partial recollection of facts. The attorney defending the deposition may want to confer with them as soon as possible, either to get the client back on track or to strategize and discuss how to respond more effectively to the deposing attorney. Doing so is not advisable, however, as in certain jurisdictions, the substance of their conversation may not be protected by the attorney-client privilege and may thus be discoverable during the deposition. Further, such questionable conduct could be deemed antithetical to the purpose of deposition: getting to the truth.

Attorney-Client Privilege and Its Purpose

The attorney-client privilege protects from discovery “confidential disclosures by a client to an attorney made in order to obtain legal assistance.” See Doe v. Schuylkill County Courthouse, 343 F.R.D. 289 (M.D. Pa. 2023) (citing Fisher v. United States, 425 U.S. 391 (1976)). The privilege applies to both the information the client gives to the attorney to obtain legal advice and the professional advice the attorney furnishes to the client. See Upjohn v. United States, 449 U.S. 383 (1981). The purpose of the privilege is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” See In re Teleglobe Communications, 493 F.3d 345 (3d Cir. 2007) (citing Upjohn, 449 U.S. at 389).

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]