Break in the Privilege?

The Pennsylvania Superior Court recently clarified conflicting decisions of whether conversations between witnesses and attorneys during a deposition are subject to the attorney-client privilege.  The Court held in AmerisourceBergen Drug Corp. v. Curascript, Inc. that any discussion between a deponent and his attorney is privileged, though the deponent must answer whether he spoke with his attorney during a break in the deposition.

We think this is the correct decision.  Piercing the attorney client privilege will result in less communications between attorney and client during what is oftentimes a crucial period in the litigation process.  It is during depositions that a party often learns the most about the other party’s claims and defenses.  The attorney of the deponent is at the deposition to ensure that these claims/defenses are articulated properly and not misinterpreted due to misleading or confusing questions.  Also, no matter how experienced a party is in the litigation process, depositions are a trying event.  Without a chance to consult with counsel during a deposition, a party could be left with a transcript full of misunderstandings that would be difficult to correct at a later time.

Also, and perhaps most important, almost every attorney consults with his client during a break in the deposition.  There is no sense having a rule that no one will follow.

Jeff Resnick