In-house counsel should be and most often are heavily involved in selecting and preparing corporate witnesses for their depositions. Working with outside litigation counsel, in-house attorneys review the notice-of-deposition topics, select the most appropriate corporate employee for the deposition task, and prepare the employee by reviewing documents and providing her with the boilerplate deposition “dos and don’ts.”
But many in-house and outside counsel fail to thoroughly consider how to handle witness consultations during deposition breaks and, importantly, how to prepare their corporate witnesses for break-time discussions. Several questions arise when this situation occurs: may counsel consult with the corporate witness during a routine break, when a question is pending, or when needed to assert a privilege? And how should the corporate witness and corporate attorney respond when asked divulge their break-time conversations?