Text Messaging Client-Deponent During Deposition = Bad Idea
I use instant message often during a deposition, in fact, often it's invaluable. But using IM (or any other means) to communicate with the deponent is a really bad idea (and a violation of the rules). One lawyer found out the hard way, when a court ruled that the messages he exchanged with his client (the deponent) were subject to discovery by the opposing party. D'oh. Ngai v. Old Navy, 2009 U.S. Dist Lexis 67117 (Civ. No. 07-5653 (KSH) (PS) (July 31, 2009)).
In this personal injury case, the plaintiff sought to depose defendant GAP's claims manager regarding chain of title for a clothing rack which had caused the injuries in question. The deposition was conducted via video conference - plaintiff and defense counsel in New Jersey, the deponent was in Sacramento, and Gap's Pro Hac Vice counsel (the one primarily responsible for defending the case) was in Southfield. PHV counsel must have had a personal relationship of some sort with the deponent, because he sent the deponent numerous text messages. (I guess the claims manager is often responsible for hiring defense counsel?) One of these messages ended up going to plaintiff's counsel (?) Plaintiff's counsel became suspicious and asked PHV counsel who the message was intended for. PHV counsel gave an unsatisfactory answer, and plaintiff's counsel smartly asked everyone involved to preserve their text messages. PHV counsel moved to withdraw and plaintiff's counsel sought production of the text messages in question.
The court found that the messages sent before the deposition were protected by privilege, even though they were not strictly in the nature of legal advice. The ones sent during the deposition. Well those were a bit more problematic. The witness and counsel are subject to many of the same restrictions in deposition as at trial. Think of it this way. Does it sound appropriate to text message a witness while the witness is on the stand? Probably not:
In this personal injury case, the plaintiff sought to depose defendant GAP's claims manager regarding chain of title for a clothing rack which had caused the injuries in question. The deposition was conducted via video conference - plaintiff and defense counsel in New Jersey, the deponent was in Sacramento, and Gap's Pro Hac Vice counsel (the one primarily responsible for defending the case) was in Southfield. PHV counsel must have had a personal relationship of some sort with the deponent, because he sent the deponent numerous text messages. (I guess the claims manager is often responsible for hiring defense counsel?) One of these messages ended up going to plaintiff's counsel (?) Plaintiff's counsel became suspicious and asked PHV counsel who the message was intended for. PHV counsel gave an unsatisfactory answer, and plaintiff's counsel smartly asked everyone involved to preserve their text messages. PHV counsel moved to withdraw and plaintiff's counsel sought production of the text messages in question.
The court found that the messages sent before the deposition were protected by privilege, even though they were not strictly in the nature of legal advice. The ones sent during the deposition. Well those were a bit more problematic. The witness and counsel are subject to many of the same restrictions in deposition as at trial. Think of it this way. Does it sound appropriate to text message a witness while the witness is on the stand? Probably not:
Interesting. Plaintiff would have never known about any of this if plaintiff's counsel had not accidentally received a text message from PHV counsel. Text at your peril!put plainly, PHV counsel passed notes to his client, albeit in an electronic form, while she testified and such behavior would never be permitted at trial.
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