While the attorney-client privilege is the bedrock of the American legal system, not all communications between the lawyer and the client are confidential and privileged. For example, during a deposition in Nevada, a private conversation between the attorney and client may not be privileged in some instances. Any witness being deposed should keep in mind that breaks requested by the witness or their attorney to speak privately are not confidential unless the purpose of the meeting is to determine whether to assert a privilege. To maintain the privilege for such conference, the attorney must immediately place on the record that:
- The conference took place.
- The subject of the conference.
- The result of the conference.
Any private conversations between the witness and their attorney during non-requested breaks, such as a lunch break, are likely privileged.
Coyote Springs Inv., LLC v. Eighth Judicial Dist. Court, 131 Nev. 140, 142, 347 P.3d 267, 268 (2015), involved a real estate dispute between Coyote Springs and BrightSource. Coyote Springs’ witness testified at the deposition that he believed the term sheets for a lease were final and binding. Immediately after that testimony, Coyote Springs’ counsel requested a break from the deposition and went off the record. The witness and his counsel had a private meeting in a separate conference room during that break. When the deposition resumed, the witness “clarified” his prior testimony by contradicting everything he had previously testified to before the break.
During cross-examination of the Coyote Springs’ witness at trial, BrightSource inquired as to what was discussed during the private conference at deposition. Coyote Springs’ counsel objected based on attorney-client privilege. The district court noted that the conference may have addressed privileged information. Still, the objection was overruled “given the timing of the communication between counsel and the witness,” and, therefore allowed the questioning to continue.
Upon review, the Nevada Supreme Court determined that the off-record meeting between the deposed witness and his counsel was not privileged. The Court examined two federal cases that address private conferences during deposition breaks: Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993) and In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D. Nev. 1998). In Hall, the federal court held that “conferences between witness and lawyer are prohibited both during the deposition and during recesses,” unless the conference concerns whether to assert a privilege. The Hall court explained that during a civil trial examination, “a witness and their lawyer are not permitted to confer at their pleasure during the witness’s testimony. Once a witness has been prepared and has taken the stand, that witness is on his or her own.”
In the In re Stratosphere case, the federal court concluded that the Hall court was too restrictive. The court stated that attorneys may conduct private meetings during unrequested recesses in depositions to ensure that the “client did not misunderstand or misinterpret questions or documents,” to fulfill their “ethical duty to prepare a witness,” or to determine whether to assert a privilege.
In considering these two cases, the Nevada Supreme Court agreed with In re Stratosphere that the decision in Hall was too restrictive in that it precluded conversations between counsel and the witness at any point from the start of the deposition until trial when they involve an issue beyond whether to assert a privilege. The Nevada Supreme Court held that attorneys may confer with witnesses during an unrequested recess or break in a discovery deposition. Further, attorneys may confer with witnesses during requested recesses in depositions only to determine whether to assert a privilege. For the attorney-client privilege to apply to these conferences, counsel must state on the deposition record:
(1) the fact that a conference took place,
(2) the subject of the conference, and
(3) the result of the conference. Id.
In the Coyote Springs matter, the Nevada Supreme Court held that the district court did not abuse its discretion in determining that the conference was not privileged. This is because counsel did not make a prompt, sufficient conference record to preserve the attorney-client privilege.
Thanks to Eglet Adams for their insight on when a witness can have confidential conversations with their attorney in the state of Nevada.