Depositions are not usually compared to sporting events, although some readers may think that comparing a deposition to a boxing match would be appropriate. In reality, a deposition could be compared to a tennis match because in both, once the event begins, no coaching is allowed. Indeed, in US patent litigation (and other litigation), the rule is that "objections should be stated as briefly as possible" and should not be "designed to coach or suggest an answer to the witness or otherwise to interfere with questioning of the witness by opposing counsel" (Collins v Int'l Dairy Queen, Inc, No CIV A 94-95-4MACWDO, 1998 WL 293314, *1 (MD Ga June 14 1998)). The lawyer defending the witness simply is not permitted to "make any objections or statements which might suggest an answer to a witness or which are intended to communicate caution to a witness with respect to a particular question" nor should the lawyer "attempt[] to suggest to the witness any particular or desired response" (Id at *3; see also Wilson v Sundstrand Corp, Nos 99 C 6944, 2003 WL 22012673, *5 (ND Ill August 25 2003) which held that counsel's objections suggesting answers were improper)). As the Court succinctly stated in Heriaud v Ryder Transp. Servs, No 03 C 0289, 2005 WL 2230199, *8 (ND Ill September 8 2005), when a lawyer is "trying to obstruct his adversaries' ability to obtain answers to their questions, and ... trying to coach his [witness] to answer-or not answer-questions ... [h]is behavior violates every rule of discovery that broaches the subject".
Coaching also is not permitted during breaks in the deposition. Courts have held that "[a]ltering deposition testimony ... to conform to the revised versions that emerged only after ... coaching by ... counsel during breaks" in the deposition is improper (Strauch v American College of Surgeons, No 02 C 3314, 2004 WL 2584794, *1 (ND Ill November 12,2004), which refused to allow admission of "revised" testimony at trial)). In the District of Delaware, there is a specific local rule prohibiting coaching during breaks. Rule 30.6 states: "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." Thus, once the deposition begins, the lawyer defending the deposition is prohibited from coaching or otherwise suggesting answers to the witness, from speaking with the witness about his or her testimony during deposition breaks, and from obstructing questioning of the witness through speaking objections.
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| Russell Levine |
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