Preparing a Witness for Deposition: What Is Proper, What Is Coaching, and What the Other Side Can Discover

The American Bar Association's ethics committee opened its leading opinion on witness preparation with a scene from the television series Deadwood. Jack McCall, who has shot Wild Bill Hickok in front of a saloon full of people, sits with his lawyer. The lawyer asks whether Hickok ever killed a relative of his. "Possibly a brother in Abilene. Or the like." McCall cocks his head. "A brother in Abilene . . . ." The lawyer smiles, pats him on the knee, and walks out.

Everyone watching knows what just happened, and no one in the scene said anything false. That is the problem this article is about. The same opinion says something lawyers tend to forget when they tell that story: failing to prepare a witness can itself be an ethics violation. ABA Formal Opinion 508, The Ethics of Witness Preparation (Aug. 5, 2023), puts both halves in its first paragraph.

So a lawyer is required to go into a conference room with a person who will soon testify under oath, shape how that person tells the story, and stop short of shaping the story. There is no court reporter, usually no record, and often no one else there. The session may last four hours and may decide the case, because most cases never see a jury and the deposition transcript is the testimony that gets read on summary judgment and in settlement talks.

The short answer

• Preparing a witness is lawful, expected, and often ethically required. Lawyers may review documents, explain the process, identify lines of cross-examination, rehearse, suggest clearer wording, and tell the witness that "I do not recall" is a fine answer when it is true.
• The line is falsity. A lawyer may not counsel or assist a witness to testify falsely (Model Rule 3.4(b)), and subtle versions count. "The less you recall the better" is on the wrong side. So is steering a witness toward facts and theories she did not supply, the conduct for which the Fifth Circuit affirmed misconduct findings in Ibarra v. Baker.
• Privilege depends on who the witness is. A party's own conversation with counsel is protected. A current employee's usually is, under Upjohn, but the company owns that privilege and can waive it. A former employee's is contested and may not be protected at all. A third-party witness has none, though counsel's opinions may still be work product.
• Documents shown to a witness can become discoverable. Rule 612 lets a court order production of a writing used to refresh memory before testifying if justice requires. Sporck protects counsel's selection of documents against a wholesale demand, but it does not bind every court, and Nutramax and James Julian ordered production. Never show a witness anything you could not stand to hand over.
• Opposing counsel may ask a lot about preparation. The fact of meeting, how long, who attended, and usually whether documents refreshed recollection are fair game. What was said between client and lawyer is not, and the underlying facts never were protected.
• Once the witness is sworn, the rules tighten. No one may confer while a question is pending except about privilege. Beyond that, courts split on breaks, and the split can decide whether the lunch conversation is privileged.
• If you are the person being deposed, the single most useful thing to know is that you are allowed to meet with your lawyer, you are allowed to say so, and your only job under oath is to answer the question asked, truthfully, from your own memory.

Why the conference room matters more than the courtroom

Judge Gawthrop made the point with numbers. In Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), he observed that only 3.8 percent of the civil cases that ended in his district in the year he examined reached trial, and concluded that "[t]he pretrial tail now wags the trial dog." A deposition, he wrote, serves in part as "the memorialization, the freezing, of a witness's testimony." The rules give that frozen testimony real consequences.

• A deposition answer inconsistent with later testimony can come in for its truth, and not merely to impeach, if the witness testifies and is cross-examined, because it was given under penalty of perjury in a deposition. Fed. R. Evid. 801(d)(1)(A). An amendment the Supreme Court approved on April 8, 2026, effective December 1, 2026 unless Congress acts, drops the under-oath requirement for prior inconsistent statements, so the deposition answer qualifies either way.
• An adverse party may use the deposition of a party, or of a party's officer, director, managing agent, or designee, for any purpose. Fed. R. Civ. P. 32(a)(3). Current employees speaking within the scope of their employment can bind the employer under Rule 801(d)(2)(D).
• A lazy errata sheet will not rescue a bad answer. The Seventh Circuit treats a contradictory change as impermissible unless it can plausibly be represented as correcting a transcription error, Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir. 2000), and the Ninth Circuit reads Rule 30(e) to allow corrective, not contradictory, changes, Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217 (9th Cir. 2005). Other circuits are more forgiving, but the original answer usually stays in the record for cross-examination either way. For the back end of this story, see Using Depositions at Trial and on Summary Judgment: Rule 32, Designations, Errata Sheets, and Impeachment.

The witness will also be alone in a way she may not expect. Examination proceeds as at trial under Rule 30(c)(1), objections must be nonsuggestive under Rule 30(c)(2), and the lawyer sitting beside her may instruct her not to answer only to preserve a privilege, enforce a court limit, or move under Rule 30(d)(3). As Hall put it, "[o]nce a witness has been prepared and has taken the stand, that witness is on his or her own." The conference room is the last place the lawyer can help.

The line between preparing and coaching

It is an old line

In 1880 the New York Court of Appeals upheld the three-year suspension of a lawyer whose will-contest witnesses, examined out of state by commission, later confessed to perjury and pointed at him. His payments to one of them, the court said, "if not bribes, approached nervously near to the line." The sentence from that opinion has been quoted ever since: "His duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know." In re Eldridge, 82 N.Y. 161 (1880).

Read alone, Eldridge would forbid most of modern practice. It does not survive as a description of what lawyers may do. By 1957 a federal judge in New York was writing that "[i]t is usual and legitimate practice for ethical and diligent counsel to confer with a witness whom he is about to call prior to his giving testimony," including asking the expected questions and going through the documents, and calling that preparation "essential to the proper presentation of a case." Hamdi & Ibrahim Mango Co. v. Fire Ass'n, 20 F.R.D. 181 (S.D.N.Y. 1957). But the Eldridge image still marks the concern. Maryland's high court, facing a prosecutor who had shown witnesses a dying victim's videotaped deposition, called the line "fine and difficult to discern," and repeated a Rhode Island court's advice that the examiner must "exercise the utmost care and caution to extract and not to inject information." State v. Earp, 571 A.2d 1227 (Md. 1990). The trial judge there let cross-examination expose what had happened, and the high court treated exclusion as an extraordinary step, but it warned that a lawyer refreshing a witness with facts learned elsewhere "should exercise great care to avoid suggesting to the witness what his or her testimony should be."

The Supreme Court gave the modern formula in a footnote. "An attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it." Geders v. United States, 425 U.S. 80 (1976), n.3.

The rules that actually apply

No Model Rule is titled "witness preparation." Several rules converge on it. These are the ABA's model versions, and your state's adopted version controls.

Criminal law sits behind the ethics rules. Perjury is 18 U.S.C. § 1621. False declarations in proceedings before or ancillary to a federal court are 18 U.S.C. § 1623, and the Supreme Court has read "ancillary" to reach pretrial depositions while excluding a sworn statement taken informally in a private lawyer's office. Dunn v. United States, 442 U.S. 100 (1979). Procuring perjury is subornation under 18 U.S.C. § 1622, and corruptly persuading a witness to alter testimony can be tampering under 18 U.S.C. § 1512.

What everyone agrees is allowed

Formal Op. 508 gives the most useful list available. It is accepted, the opinion says, for a lawyer to remind the witness of the oath; emphasize truthfulness; explain that a truthful "I do not recall" is acceptable; explain case strategy and procedure; suggest attire and demeanor; provide context; inquire into probable testimony and recollection; identify other expected testimony and explore the witness's version in light of it; review documents, including to refresh recollection; identify lines of questioning and potential cross; suggest word choices that make the witness's meaning clear; tell the witness not to answer until the question is finished; stress staying calm and not arguing; tell the witness to testify only to what she knows and not to guess; and familiarize the witness with the idea of not volunteering.

Section 116 of the Restatement (Third) of the Law Governing Lawyers, comment b, is the older statement of the same idea, and the opinion draws on it. The comment contemplates discussing law and factual context, asking a witness to reconsider a recollection in light of other evidence, and rehearsal. It also marks the limit: in suggesting a choice of words, "a lawyer may not assist the witness to testify falsely as to a material fact."

The District of Columbia said it most bluntly, decades earlier. D.C. Bar Opinion 79 (1979), decided under the former Code of Professional Responsibility and quoted in D.C. Bar Ethics Opinion 234, holds that a lawyer "may not prepare, or assist in preparing, testimony that he or she knows, or ought to know, is false or misleading," and that so long as that limit holds, a lawyer "may properly suggest language as well as the substance of testimony." Notice two features. The D.C. opinion is more permissive than most lawyers assume on language and substance. And it is stricter on knowledge, adding "ought to know" and "misleading" to the test. Opinion 234, applying the current D.C. Rules, rests on the knowledge-based Rules 3.3 and 1.2(e) and says the committee "reached the same result" under the Code, so read the stricter wording as a caution and not as a separate rule in force today.

What everyone agrees is forbidden

Formal Op. 508 names counseling or assisting false testimony, advising a witness to disobey an order regulating discovery or trial, unlawful inducements, and procuring a witness's absence. It adds pointed examples drawn from discipline cases: telling a witness to "downplay" how many times she met with the lawyer; encouraging a client to misstate where a slip and fall occurred; knowingly violating a sequestration order; and paying a lay witness for the substance of testimony, even "truthful" testimony. Fact witnesses may be paid for time and expenses if payment is not tied to content, a point the opinion takes from ABA Formal Op. 96-402 and which 18 U.S.C. § 201(d) reflects for travel, subsistence, and the reasonable value of time lost in attendance.

The cases that actually draw the line

Two Fifth Circuit decisions, read side by side, teach more than any list.

The case that cleared the lawyers. In Resolution Trust Corp. v. Bright, 6 F.3d 336 (5th Cir. 1993), lawyers for the Resolution Trust Corporation interviewed a former bank employee and handed her a draft affidavit that, as they warned her, contained things they had not discussed with her but believed to be true. She made changes. They pushed back and described their understanding of events. She refused some changes because she lacked personal knowledge, and they ultimately incorporated her edits before she signed. The district court disbarred the lawyers from practicing before it and assessed fees against their firm. The Fifth Circuit reversed the sanctions: "It is one thing to ask a witness to swear to facts which are knowingly false. It is another thing, in an arms-length interview with a witness, for an attorney to attempt to persuade her, even aggressively, that her initial version of a certain fact situation is not complete or accurate." The lawyers were persistent, the court said, but they made sure she signed only what she agreed with.

The case that did not. In Ibarra v. Baker, 338 F. App'x 457 (5th Cir. 2009), an unpublished opinion arising from a § 1983 suit against Harris County officers, county lawyers authorized their retained expert to meet alone with officer witnesses the day or two before their depositions. The expert flew in, handed one officer his own highlighted and marked-up copy of a criminal trial transcript, and discussed reasonable suspicion "in the abstract." The next day the officer arrived at his deposition with a page of notes listing eight facts supporting reasonable suspicion, in roughly the same order as the expert's report, and testified that the location was a "high crime area," a phrase he had never used before and said he learned at a briefing of which he could not recall a single other detail. Billing records then surfaced a meeting between the expert and the lawyers the day before, which no one had mentioned.

The Fifth Circuit began with the sentence every witness-preparation memo should quote: "An attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line when she influences the witness to alter testimony in a false or misleading way." It called the evidence "a bit scant," but it reviews such findings only for clear error, and it affirmed the coaching findings. It explained why the vocabulary mattered. New terms would be unremarkable if they merely repackaged prior testimony, "neither adding nor subtracting anything substantive." These did more. "Retaliation," in the colloquial sense the officer had used before, meant a fear for officer safety. The sanctions rested on the view that, through the expert's report, the word became a reference to a Texas crime, supplying a defense theory no prior testimony supported.

The same opinion vacated a separate finding that the lawyers abided false testimony, because the district court had asked what they "knew or should have known" and the Model Rules speak of knowledge. That difference is easy to miss. A lawyer may offer evidence she believes but does not know to be false. She may not build it.

Put the two cases together and three distinctions emerge.

1. Source. In Bright the new content was openly presented for the witness to accept or reject. In Ibarra it arrived through a back channel, and the participants were cagey about it afterward.
2. Change in substance. A better word for the same fact is preparation. A new fact, or a word that smuggles in a legal element, is the danger zone.
3. Who decided. Bright's witness kept saying no, and the lawyers wrote down what she said. A witness who ends up reciting the theory of the case has been decided for.

The law on scripts remains open. Formal Op. 508 notes that, outside extreme cases, how far a lawyer can "script" otherwise truthful testimony "has not been definitively resolved." It contrasts an unpublished California federal decision calling it unacceptable to direct a witness to use or avoid particular words with Bright, and mentions a Northern District of Illinois ruling that question-and-answer scripts were not prohibited coaching. Written scripts also create a document that may be discoverable, which is a sufficient reason not to use them.

Hypothetical: the word "copied"

Suppose a firmware engineer named Oriel Tan is about to be deposed in a trade secret case against her employer, Halberd Robotics. In the first prep session she describes how she started on the motor-control module: "I basically copied the structure from the reference design." The reference design is a public example published by the chip vendor, and her old employer's code is what the plaintiff says was taken.

Her lawyer asks what she means. She opens the commit history and explains that she cloned the vendor's public repository, kept the interrupt layout, and rewrote the rest. The lawyer says: "If that's what happened, 'copied' may leave a misimpression about what you took and from where. Could you describe it more exactly? Use whatever words are accurate."

That is preparation. The word was vague, the witness supplied the facts, and the lawyer is pushing for accuracy. Formal Op. 508 lists suggesting word choice "to make the witness's meaning clear."

Now change one fact. Oriel says she had her old employer's module open in another window for reference on two occasions. The lawyer says: "Let's not use 'reference.' You developed this independently, right? Just say you developed it independently." Now the lawyer has supplied a legal conclusion that conflicts with what she told him, and "independent development" happens to be a defense. Rule 3.4(b) is in play, and if the deposition later turns up a transcript of her own chat messages, so is the case. For the substance of that defense, see Defending a Trade Secret Claim: Reverse Engineering, Independent Development, Public Disclosure, and Readily Ascertainable Information.

How memory behaves, and why truthful preparation is harder than it sounds

The lawyer who thinks of memory as a video file will prepare witnesses badly. Psychologists have long described recollection as reconstruction. In a classic experiment, Elizabeth Loftus and John Palmer showed subjects film of a car accident and asked how fast the cars were going when they "smashed" or "hit." The word changed the speed estimates, and a week later more of the "smashed" group remembered broken glass that was not in the film. See Elizabeth F. Loftus & John C. Palmer, Reconstruction of Automobile Destruction, 13 J. Verbal Learning & Verbal Behav. 585 (1974). John S. Applegate's article Witness Preparation, 68 Tex. L. Rev. 277 (1989), which the Fifth Circuit cited in Ibarra and the ABA cites in Formal Op. 508, is the standard treatment of what that research means for lawyers. See also Richard C. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995).

Three practical consequences follow, and they cut in more than one direction.

Repetition can harden error. Each time a witness retells a story, the retelling becomes part of what she remembers. A lawyer who tells a witness what a document shows before asking what she remembers has already changed the evidence, and the witness may sincerely believe the result. This is why Peralta worried about communications that might influence a witness "consciously or unconsciously." The technique that follows is simple: get the witness's unaided account first, then show documents, and take care about the order.

Documents are the best antidote and a contamination risk. Most people cannot recall the details of an email from four years ago without seeing it, and a witness who testifies from unrefreshed memory will often be wrong in ways the documents prove. Judge Grimm wrote in Nutramax Laboratories, Inc. v. Twin Laboratories Inc., 183 F.R.D. 458 (D. Md. 1998) that "no competent counsel can afford to ignore reviewing with witnesses the documents which relate to critical issues." But he also saw the deposing lawyer's legitimate interest: knowing whether the witness is testifying from present memory, from memory refreshed by other materials, or from no memory at all, repeating what the paper says. A truthful witness needs to be able to tell these apart. "I remember the call. I don't remember the date, but the calendar entry I looked at says March 3" is an honest answer. A witness who merges them into "The call was on March 3" has said something different.

The discipline of "yes, no, I don't recall" serves accuracy and can be abused. Witnesses are told to answer the question asked, to avoid volunteering, and not to guess. Those instructions are on the ABA's approved list, and for sound reasons. Questions at deposition often contain premises, and a witness trying to be helpful adopts them. Volunteered narrative is frequently where a witness speculates. A witness who fills silence with theories about what her boss must have been thinking is not more truthful.

The abuse comes from treating "I don't recall" as a strategy. Formal Op. 508 separates the two with a clarity that deserves memorizing. Saying a truthful "I do not recall" is acceptable is proper. "The less you recall the better" affirmatively encourages a witness to "forget," which the opinion calls "the ethical equivalent of telling a witness affirmatively to testify to something that is contrary to fact." Experienced examiners notice the pattern, and a witness who remembers nothing about the bad facts and everything about the good ones looks worse than one who concedes a bad email.

The discipline also has a sharper edge. In Bronston v. United States, 409 U.S. 352 (1973), the Supreme Court held that a literally true but unresponsive answer cannot support a federal perjury conviction, and that the burden is on the questioner to pin the witness down. The witness there, asked whether he personally had Swiss bank accounts, answered that his company had had one. Bronston is a holding about the perjury statute and gives no license to mislead. A lawyer who prepares a witness to give misleading half-truths risks Rule 3.4(b), the D.C. "misleading" standard, and the jury's reaction when the examiner gets a second try.

Upjohn, and the question of who is in the room

The privilege analysis starts with a question that deserves a plain answer before anyone sits down: who is the client?

The employee witness

Upjohn Co. v. United States, 449 U.S. 383 (1981) held that communications between company counsel and employees at any level can be privileged when made at the direction of superiors, to secure legal advice for the company, on matters within the employee's duties, with the employee aware of the purpose. The Court's reason applies directly: an uncertain privilege, it said, "is little better than no privilege at all." It also gave a limit that witnesses should hear in every prep session. "The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney."

So when opposing counsel asks "Did the shipment go out in March?", the answer cannot be withheld because the witness told her lawyer. When she asks "What did you tell your lawyer about the shipment?", the answer is protected.

The warning, and why people get it wrong

An Upjohn warning (sometimes called a corporate Miranda warning) tells the employee that company counsel represents the company and not the individual, that the conversation is privileged but the privilege belongs to the company, and that the company alone may decide to waive it. The authority is partly about ethics. Model Rule 1.13(f) requires a lawyer to explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the person she is dealing with. And it is partly about what happens to the privilege later. Under Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343 (1985), the power to waive a corporation's privilege rests with management, and it moves with control of the company.

Two appellate decisions show what goes wrong.

In In re Grand Jury Subpoena: Under Seal, 415 F.3d 333 (4th Cir. 2005), AOL's investigating lawyers told employees that they represented the company, that the privilege was the company's, and that they "could" represent the employee "as long as no conflict appeared." When the company waived and the SEC and grand jury came calling, the employees claimed a personal privilege. The Fourth Circuit rejected it because their belief was not objectively reasonable. Then it added a warning for the lawyers: its ruling "should not be read as an implicit acceptance of the watered-down 'Upjohn warnings,'" which were "a potential legal and ethical mine field."

In United States v. Ruehle, 583 F.3d 600 (9th Cir. 2009), a CFO's statements to outside counsel were given to the auditors and ultimately to the government. The lawyers testified they gave the warning; he testified he did not recall it. The district court, as the Ninth Circuit read the record, seems to have disbelieved the lawyers, who had taken no notes on the point, and it suppressed the statements. The Ninth Circuit reversed on different grounds, finding that under federal common law his statements were made for disclosure to the auditors and thus not "made in confidence." The appellate win does not erase the embarrassment. Write the warning down. An employee who wants a personal privilege in the Third Circuit's formulation, In re Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120 (3d Cir. 1986), must meet a five-part test and show, among other things, that the conversation did not concern matters within the company. Almost no one meets it.

The warning is a deposition-prep problem too

Upjohn warnings are usually taught as an internal-investigation tool. See Conducting an Internal Investigation: Scope, Privilege, and Reporting and Internal Investigation and Upjohn Warning Checklist: A Practical Checklist. They belong in deposition preparation for a reason the investigation materials don't stress. The employee being prepared often thinks of the company lawyer as "my lawyer" for the deposition. Often the lawyer will be representing her at the deposition, at least in some sense. That raises the questions Model Rules 1.7 and 1.8(f) address: whether joint representation is permissible, whether informed consent is needed, and who pays. If the lawyer does take on the employee as a client for the deposition, the privilege picture changes. In joint representation, communications are privileged against outsiders but generally not as between the co-clients if they later fall out. In re Teleglobe Communications Corp., 493 F.3d 345 (3d Cir. 2007) is the leading explanation of how that co-client privilege works and how it differs from the community-of-interest privilege.

The lawyer must decide this before the session. Sometimes the answer is that the employee needs separate counsel, and the company should pay. Scenarios that signal this include personal exposure, a likely termination, facts suggesting the employee did what the plaintiff alleges, or a witness whose truthful account hurts the company.

If separate counsel is in the room, or the session involves sharing with a co-defendant's lawyers, the common-interest doctrine is the shelter. Hanover Insurance Co. v. Rapo & Jepsen Insurance Services, Inc., 870 N.E.2d 1105 (Mass. 2007) adopted it in Massachusetts by reference to Restatement § 76. Teleglobe, applying Delaware law, cautions that the sharing must run between the separate lawyers rather than directly among the clients and that the interests must be substantially similar and legal. Sharing a binder directly with an aligned witness who has no lawyer is a different event.

Group preparation deserves its own warning. Putting three employee witnesses in a room together may be privileged, but it hands the examiner a very good cross-examination about whether they compared stories, and each witness's account will drift toward the others'. Sequestration is not automatic at a deposition, since Rule 30(c)(1) excepts Rule 615 and exclusion takes an order under Rule 26(c)(1)(E), but lawyers need not do the mixing themselves. Prepare witnesses separately. For more on the privilege itself, see Attorney-Client Privilege and Work Product for Businesses: Upjohn, In-House Counsel, and the Common Interest.

Former employees and third-party witnesses

This is the real split, and lawyers miss it constantly. Footnote 3 of Upjohn expressly left open whether the privilege reaches former employees. Seven of the 86 employees interviewed there had already left. Chief Justice Burger, concurring, would have covered them. Courts since have divided into roughly three camps.

The Fourth Circuit's broad rule. In Allen, an outside lawyer hired to investigate within a West Virginia attorney general's office interviewed a former employee. Noting that most lower courts had followed Chief Justice Burger, the court held "that the analysis applied by the Supreme Court in Upjohn to determine which employees fall within the scope of the privilege applies equally to former employees." The setting was an investigative interview, though, and the court's reasoning rests on counsel's need to learn what happened. It does not address preparing a former employee to testify for your side.

The Peralta line. Peralta did address it. Randi Klaber, the plaintiff's former supervisor and allegedly the decision-maker in an employment discrimination suit, was subpoenaed. Cendant's lawyer, who did not represent her, had met with her and spoken to her during a break, when Klaber sought "guidance on how to answer a line of inquiry that she perceived may cause her problems or may be unclear." Judge Arterton held that what Klaber knew from her employment and conversations about those facts stayed privileged, whenever they occurred. But conversations beyond that were not, including telling her what other witnesses had said. The court gave a test that is easy to remember: "did the communication relate to the former employee's conduct and knowledge, or communication with defendant's counsel, during his or her employment?" And the conversation during the break about how to handle a question was open to inquiry. Counsel's own legal opinions might still be work product, the court added, and work product survives disclosure to a friendly third party, but the plaintiff could ask about non-opinion statements that could have shaped testimony.

Washington's bright line. In Newman, a high school football player's negligence suit led to depositions of the entire coaching staff, including coaches who had moved on. District counsel interviewed the former coaches and appeared for them at their depositions. The Washington Supreme Court rejected the privilege for postemployment communications outside that deposition representation: "[E]verything changes when employment ends." Former employees can no longer bind the employer and owe no duties of loyalty and obedience, so they are, in general, like other third-party witnesses. The court expressly found Allen's need-to-know reasoning unpersuasive.

Two more wrinkles come up often. First, in a federal diversity case, state privilege law governs under Fed. R. Evid. 501, which is why Ngai v. Old Navy, 2009 WL 2391282 (D.N.J. July 31, 2009), a diversity case discussed below, applied New Jersey's privilege statute. A Washington state-law claim in federal court in Seattle will bring Newman with it. Second, Peralta and the Restatement both mention continuing duties. A former employee under a consulting or cooperation agreement may be treated differently, though the agreement itself is discoverable and a paid witness invites a cross-examination on bias. Payment must meet the limits discussed above.

Hypothetical: the former VP of engineering

Suppose Merrow Software is defending a patent case. Its former VP of engineering, Dana Oyelaran, left two years ago on decent terms and has been subpoenaed. Merrow's lawyer calls her. What should she do?

First, identify the forum's rule. If this is a federal question case, federal common law governs and the circuit's view matters. If Allen applies, a fact-gathering interview is probably protected. In a court following Peralta, facts from her tenure are protected, and the moment the lawyer says "Here is what Priya testified last week," the conversation becomes fair game.

Second, decide whether to represent her. If Merrow's lawyer takes her on as a client for the deposition, after a conflict check and informed consent under Rule 1.7, the communications during that representation should be privileged. Newman treated the deposition representation as within the privilege, though that point was not challenged there. Representation also has costs. Merrow's lawyer now owes her duties, and if her interests diverge, withdrawal may follow.

Third, if the lawyer does not represent her, Rule 4.3 applies. No legal advice except to obtain counsel. He should say clearly who he represents and that she may hire her own lawyer. He should show her documents only with the awareness that she may be asked about them, and he should assume the whole conversation could be read aloud to a jury. Offering to pay her reasonable hourly rate for prep time may be permitted, but check local rules, and assume she'll be asked what she was paid.

The third-party witness who never worked for your client is the simple version of the same problem. No privilege attaches. Work product may protect the lawyer's notes and impressions under Hickman v. Taylor, 329 U.S. 495 (1947) and Rule 26(b)(3), but what the lawyer said to the witness is likely to come out, and the lawyer who coaches a non-client witness has Rule 3.4(b) to deal with too. Subpoena mechanics are in Rule 45 Subpoenas to Nonparties: Service, Objections, and Motions to Quash.

Rule 612: when the prep binder comes back to haunt you

The text and how it reaches depositions

Fed. R. Evid. 612 gives an adverse party options when a witness uses a writing to refresh memory "(1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options." The options are production, inspection, cross-examination, and admission of any relevant portion. Non-compliance permits "any appropriate order." It reaches depositions through Rule 30(c)(1).

Two different worlds sit inside that text. A writing used while testifying is produced as of right. This is why a witness should never bring notes to the deposition, or glance at a phone or a second screen. A writing used before testifying is produced only if the court decides justice requires it, which is where the fighting occurs. The battle is over work product, the doctrine from Hickman v. Taylor, 329 U.S. 495 (1947) and Rule 26(b)(3) that shields trial preparation from the other side, with near-absolute protection for "opinion work product," meaning counsel's mental impressions.

Sporck and the selection theory

Sporck set the terms of the argument. Defense lawyers in a securities class action selected some unknown number of the hundreds of thousands of documents already produced, put them in a folder, and showed them to the company's president before his week-long deposition. At the outset, plaintiffs' counsel asked if he had looked at any documents and demanded all of them. Defense counsel refused to identify them, the district court ordered it, and the Third Circuit granted mandamus relief in substance.

The majority held two things. First, selecting and compiling documents in preparation for pretrial discovery "falls within the highly-protected category of opinion work product." Identification of the folder as a group would reveal what the lawyer thought mattered. Second, Rule 612 had not been satisfied. It requires that (1) the witness use the writing to refresh memory, (2) for the purpose of testifying, and (3) the court determine production is necessary in the interests of justice. Asking at the start of a deposition, before any testimony on the topic, could not show any of that.

The court then told examiners what to do instead. First elicit specific testimony, then ask whether any document informed that answer. Those documents can be identified, because the deposing lawyer would discover them "through his own wit, and not through the wit of his adversary."

Judge Seitz dissented with a point that still has force. What the witness looked at is a fact, the documents were not created by counsel, and one cannot "extrapolate backwards" from a stack of paper to a lawyer's strategy.

The Fourth Circuit endorsed the selection theory in Allen, holding that a lawyer's "choice and arrangement" of a person's employment records is opinion work product, while emphasizing that the records themselves remain discoverable. The Eighth Circuit said much the same in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986), in the context of deposing opposing counsel. The Second Circuit is more skeptical, calling it a "narrow exception" that requires "a real, rather than speculative, concern" that counsel's thought processes will be exposed. Gould Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676 (2d Cir. 1987); In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379 (2d Cir. 2003). In that grand jury case, conclusory affidavits were not enough.

The other line: Berkey, James Julian, and the lawyer who has to choose

Judge Frankel saw the problem before Sporck. In Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613 (S.D.N.Y. 1977), Kodak's trial lawyer had written four notebooks, organized around the facts and legal issues, and given them to testifying economists as background. The court found they were work product, with an "impact" on testimony. It refused production largely because the law was new and counsel had not been "vividly aware" of the risk, and it saw no calculated plan to exploit the notebooks. Then it warned the bar: "there will be hereafter powerful reason to hold that materials considered work product should be withheld from prospective witnesses if they are to be withheld from opposing parties." It also left room for discovery where lawyers try to "exceed decent limits of preparation."

Berkey involved experts, and the expert rules have since been rewritten; see Expert Depositions: Taking Apart the Opinion, Protecting Your Own Expert, and Building the Daubert Record. But the logic moved to fact witnesses. In James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138 (D. Del. 1982), plaintiff's counsel assembled a binder of documents and gave it to company witnesses before depositions. The documents were work product at the start, the court agreed, and it used language the Sporck majority later quoted. But it ordered production. In its words, "[p]laintiff's counsel made a decision to educate their witnesses by supplying them with the binders, and the Raytheon defendants are entitled to know the content of that education." Sporck quoted James Julian on selection without discussing that result, because the Third Circuit never reached the balance once it found no foundation under Rule 612. The reasoning remains available to any court outside the Third Circuit that finds it persuasive.

Nutramax and the balancing test

Then-Magistrate Judge Grimm's 1998 opinion is where a careful lawyer should spend the most time. The plaintiff's witnesses reviewed documents with counsel before depositions on the on-sale bar, a patent defense that would end the case, and were instructed not to identify them. The court reviewed the documents in camera (privately, in chambers). It treated the first two elements of Rule 612 as provable directly or circumstantially, rejecting the idea that a witness can avoid the rule by denying that a document helped. Then it balanced nine illustrative factors under the third element.

The results varied, and the variation is instructive. Eleven documents reviewed by a designee at the center of a document-destruction dispute came in. So did 32 reviewed by another designee, except one that was plainly attorney-client privileged. Five reviewed by a shipping clerk who testified from personal knowledge did not, since he said they didn't refresh him and the court, having read them, believed him.

Two lessons are worth carrying forward. A Rule 30(b)(6) designee is a special risk, because that witness is educated by documents almost by definition, and the rule's duty to prepare means the materials are likely to be a target. See Preparing and Defending a Rule 30(b)(6) Deposition and Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416 (5th Cir. 2006) on the scope of that duty. And an evasive "no, nothing refreshed me" invites the court to look for itself. A truthful answer about what the witness reviewed is often the better course, especially when the documents were produced anyway.

The working rule for the binder

Treat the witness's binder as if it may be read by the other side. In practice:

1. Show only documents that have been produced, or that you are prepared to produce.
2. Keep attorney-created summaries, chronologies, and outlines out of the witness's hands. As Sporck describes it, Bogosian v. Gulf Oil Corp., 738 F.2d 587 (3d Cir. 1984) held that merely showing work product to a witness is not a waiver, but its dictum recognized a "direct conflict" between Rule 612 and Rule 26(b)(3) when a witness refreshes from a lawyer's document, and Sporck declined to comment on that conflict. Berkey tells you what a court may do.
3. Do not show privileged documents to refresh recollection without a decision at the client level. If privileged material refreshes testimony, privilege may be lost, and Rule 502 limits on subject matter waiver may or may not help. See Rule 502 and Inadvertent Production: Waiver, Clawback Agreements, and Why Every Case Needs a 502(d) Order.
4. Ask the witness to say what she reviewed on her own too. Documents she pulled herself have no selection argument.
5. Keep a list of what was shown, in the lawyer's file. It will be needed if a court orders disclosure.
6. Tell the witness the truth about what might happen, so she does not freeze when asked.

What the other side can ask about preparation

The fight is usually won or lost on the transcript. The defending lawyer has a short list of proper grounds for an instruction under Rule 30(c)(2), and a blanket refusal can cost her personally. In Resolution Trust Corp. v. Dabney, 73 F.3d 262 (10th Cir. 1995), the Tenth Circuit upheld a sanction against a lawyer who told a witness not to answer anything without his permission and made a blanket work product objection to a whole line of questions. The doctrine "does not protect facts concerning the creation of work product or facts contained within work product." If you know before a deposition that a line of questioning is off limits, the court said, the proper procedure is a protective order under Rule 26(c).

The following table states the usual answers for a represented party or current employee in federal court.

The Supreme Court has blessed this kind of probing. "The opposing counsel in the adversary system is not without weapons to cope with 'coached' witnesses," Geders said, and a cross-examiner may ask about the extent of any coaching during a recess, subject to the court's control. And the point the examiner most wants may have nothing to do with privilege. "Did you meet with counsel for six hours?" is a fair jury point, even with no further answer. A prepared witness says yes, without apology. "I met with my lawyer because I had never done this before. He told me to tell the truth."

That last sentence is worth a word. Witnesses are told to say it because it is true, and because it is a good answer. It reveals a communication, however, and a lawyer who wants to keep a tight privilege record should think about whether to prepare a witness to volunteer it. In most civil cases, the waiver risk from this one sentence is modest, but a lawyer should make that call deliberately.

During the deposition: breaks, phones, and the part with no ethics rule

Formal Op. 508 says something surprising: "there is no express ethical prohibition on communications between witness and counsel during a break in testimony." The restrictions come from courts. For the full debate, read Deposition Objections and Instructions Not to Answer: What Rule 30 Allows and What Gets Lawyers Sanctioned. The outline for preparation purposes is this.

The constitutional frame comes from criminal trials. Geders held that barring a defendant from consulting his lawyer during a 17-hour overnight recess violated the Sixth Amendment. Perry v. Leeke, 488 U.S. 272 (1989) held that a 15-minute recess was different, because "neither he nor his lawyer has a right to have the testimony interrupted in order to give him the benefit of counsel's advice," and a witness allowed to consult may "regroup and regain a poise and sense of strategy that the unaided witness would not possess." In a civil trial, Potashnick v. Port City Construction Co., 609 F.2d 1101 (5th Cir. 1980) reversed where a judge barred a party from talking to his lawyer during an overnight recess in his testimony, grounding the right to retained counsel in Fifth Amendment due process.

At depositions, Hall bars private conferences, including at breaks, except to decide whether to assert a privilege, and treats any others as open to inquiry. Plaisted v. Geisinger Medical Center, 210 F.R.D. 527 (M.D. Pa. 2002) and Ngai follow it. In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D. Nev. 1998) thinks Hall "goes too far," prohibiting a demand for a break between question and answer while allowing conferences during recesses the lawyer did not request, including to fix a misunderstanding. Odone v. Croda International PLC, 170 F.R.D. 66 (D.D.C. 1997), McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648 (D. Colo. 2001), and State ex rel. Means v. King, 520 S.E.2d 875 (W. Va. 1999) are in that camp. Coyote Springs Investment, LLC v. Eighth Judicial District Court, 131 Nev. Adv. Op. 18 (2015) adopted Stratosphere for unrequested recesses, held that a lawyer may not request a break to confer except about privilege, and required a record. Hunt v. DaVita, Inc., 680 F.3d 775 (7th Cir. 2012) said in dictum that "[c]oaching and private conferences (on issues other than privilege) that would be inappropriate during trial testimony are not excused during a deposition merely because the judge is not in the room." Stratosphere still has followers even within the Seventh Circuit: Strebel v. Scoular, No. 24 C 968 (N.D. Ill. Mar. 2, 2026), an unreported order, is described in published commentary as declining a categorical bar on break conferences and refusing to reopen depositions for questions about them. Some forums have rules: New Jersey's R. 4:14-3(f), quoted in Ngai, bars communication while testimony is being taken except about privilege, and the McKinley opinion quoted a Colorado local rule barring off-the-record conferences that interrupt examination.

Everyone agrees on two points. No conferring while a question is pending, except about privilege. And a lawyer should tell the witness before the deposition what the forum's rule is, because the witness will be asked what happened at lunch. The conduct guide is Handling Objections, Coaching, and Misconduct at a Deposition: A Practical Guide, with scripts in Deposition Conduct Toolkit: Objection Scripts, Record-Making Language, and Rule 30(d) Motions.

One more point. A lawyer who learns at a break that the client's sworn answer was false is not in a coaching problem. She is in a Rule 3.3 problem, with remedial duties. Correcting a material falsehood on the record is not coaching, though under Hall the conversation that prompted it may still be open to questions. Formal Op. 508 notes that openly asking a witness to correct an inadvertent misstatement "is not a coaching concern."

Remote depositions

A remote deposition under Rule 30(b)(4) removes the visibility the system relied on. Each participant is a separate endpoint, and what comes through the videoconference is just one channel. The witness's laptop may have a second window. The phone beside it has a text thread. Someone can be in the room outside the frame.

Ngai is the classic case. Defense counsel in another state exchanged text messages with a claims manager testifying by video. He accidentally sent "[you] [are] doing fine" to the plaintiff's lawyer, and when asked, he said he was texting his son. The court ordered production of the messages exchanged during the deposition, because counsel had effectively "passed notes to his client, albeit in an electronic form." Messages exchanged before she was sworn stayed privileged, with a possible reservation on one of them. Formal Op. 508 collects worse: The Florida Bar v. James, 329 So. 3d 108 (Fla. 2021), involving texted directions during a deposition and a false denial; In re Claridge (Ariz. 2022), where a lawyer used a platform's chat feature during cross; and Barksdale School Portraits, LLC v. Williams, 339 F.R.D. 341 (D. Mass. 2021), where a lawyer was overheard feeding answers off camera and was disqualified. Preparation for a remote deposition includes telling the witness these things explicitly, and asking her to keep her phone off and out of reach. See Remote Video Depositions: Logistics, Remote Exhibits, Objections, and the Off-Camera Coaching Problem.

A newer risk runs the other way. Witnesses now prepare themselves on their own, and that may include typing facts, worries, and draft answers into a consumer AI tool. Those prompts leave the witness's device and go to a third party's servers, under whatever terms that provider sets. In United States v. Heppner, No. 25-cr-503 (S.D.N.Y. Feb. 17, 2026), Judge Rakoff held that a criminal defendant's exchanges with a consumer AI chatbot, made on his own initiative, were protected by neither privilege nor work product. Other courts have approached self-represented litigants' use of AI differently, and the law is unsettled, but a prudent lawyer now tells the witness at the first session not to do this, and asks whether she has.

The executive and the frightened clerk

The law applies equally to both. The preparation does not.

The executive usually believes she will be fine. She gives good speeches, thinks in conclusions, and has spent a career correcting premises and filling silence. Those habits are hazardous under oath. She will answer the question she thinks should have been asked, testify about what "we" did, and speculate about what the organization knew. She hasn't read the documents because her staff handles that, and she'll want to prepare for 45 minutes on the way to a meeting. She may be able to resist the deposition altogether, as Apex Depositions: When Litigants Can Depose the CEO and How Companies Resist explains, but if she's going, the prep must include a mock examination by someone willing to embarrass her on video. Her statements bind the company under Rule 32(a)(3) and Rule 801(d)(2), and the video may be played at trial.

The clerk is terrified. He may be 24, he may never have seen a lawyer, and he fears for his job if he says the wrong thing. Sometimes he thinks the company wants him to say something in particular. He needs the Upjohn warning delivered in plain language, because it is also a statement about his own vulnerability, and he needs to hear that his job is telling the truth and that nobody has asked him to do anything else. Preparation often helps a witness like this more than anyone else, since fear produces guessing and agreement with whatever the examiner says. A witness who says "I guess so" to every leading question has not told the truth, however obliging he thought he was being. He needs practice saying "I don't know" and "That's not right," and permission to ask for a break.

Lawyers should think about one more thing here. A company lawyer who tells a frightened employee what the company "needs" has stopped preparing him, whatever the words. His fear turns gentle suggestions into commands. Peralta worried about influence that is unconscious, and Rule 3.4(b) does not have an exception for lawyers who were being polite.

For the opposing perspective, examiners study these personality types closely. See Cross-Examining an Adverse Witness at Deposition: A Practical Guide.

If you are the person being deposed: plain English

If a lawyer sent you this, or you got a subpoena and started searching, here is what you should know.

A deposition is testimony under oath, outside a courtroom. A lawyer for the other side asks questions, a court reporter writes everything down, and usually a video records it. A federal deposition is generally limited to seven hours on the record, though lawyers can agree otherwise or a court can order more. Fed. R. Civ. P. 30(d)(1). There is no judge in the room. What you say can be used later as if you said it in court. Lying can be a crime.

Meeting with a lawyer first is normal and legal. If a question comes up about whether you prepared, the honest answer is yes. It isn't a trick and you shouldn't be embarrassed. If it's your own lawyer, what you said to each other is generally private, though the facts themselves aren't. If you are an employee of a company in the lawsuit, ask this question out loud: "Are you my lawyer, or the company's lawyer?" If you're a former employee or a bystander, ask the same thing, and know that you can hire your own lawyer. That conversation with a company's lawyer may not be private at all.

You will be told to answer the question and stop. Listen to the whole question. Pause. If you don't understand it, say so. If you don't remember, say so, but only if it's true. "I don't recall" is an honest answer when you don't, and a false one when you do. Don't guess. Don't estimate unless you say you are estimating. Don't agree with something in the question that you know is wrong. Be careful with "always" and "never."

Your lawyer can object, but usually you still answer. Most objections are for the record. Unless your lawyer tells you not to answer, you generally answer after the objection.

Do not talk about your testimony with other witnesses, coworkers, or friends. Those conversations aren't protected, and you can be asked about them. Don't post about it. Don't text about it. Don't type it into a chatbot. Do not delete anything, including messages you find embarrassing; deleting evidence can be far worse than whatever it says. Preservation duties are covered in Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case.

Do not bring notes unless your lawyer says so. The other side may get to see them. In one case a police officer brought a page of notes to his deposition, and the notes became the centerpiece of a sanctions order against his lawyers.

You can often read the transcript afterward. If someone asks before the deposition ends, you get 30 days after notice that the transcript is available to review it and list changes with reasons. Fed. R. Civ. P. 30(e). Use this for real corrections, and not to change your story.

If you might be in legal trouble yourself, tell your lawyer before you testify. You may have a Fifth Amendment right not to answer, but in a civil case a refusal can be used against you. Baxter v. Palmigiano, 425 U.S. 308 (1976). That decision takes individualized advice, and a company's lawyer may not be the right person to give it.

If you got a subpoena and have no lawyer, read Responding to a Third-Party Subpoena: A Practical Guide for Businesses, which is written for businesses but explains the basics. Don't ignore it.

Common arguments, assessed

For the practitioner, a few recurring positions, and how I'd rate them.

"Everything my lawyer showed me is work product, so I can't say what I reviewed." Weak if asserted across the board. Under Dabney, facts about creating work product aren't protected, and Sporck itself contemplates identification tied to specific testimony. Strong only as to a general demand for the whole compilation in a court that follows Sporck.

"It was already produced, so there's no harm in naming it." A sensible concession most of the time, and Nutramax notes the inquiry usually isn't resisted for that reason. But it forfeits the selection argument, so make that decision with the case in mind.

"You met with your lawyer for six hours, so you were coached." Rhetorically useful, legally empty. The length of preparation says little on its own. In Ibarra the sanction rested on what surfaced around the meeting.

"We were only correcting a misunderstanding at the break." Strong under Stratosphere if the examiner called the break, weak under Hall, and weak everywhere if the lawyer demanded the break between question and answer.

"She's a former employee, so it's privileged." Unsafe as a blanket statement in any court. Check the circuit, check the state, and separate facts from tenure from anything that could affect testimony.

Fair preparation is hard work, and it tends to make for better testimony. Lawyers doing this for the first time, or trying to get a nervous witness ready by next week, should go on to Preparing Yourself or Your Witness for a Deposition: A Practical Guide for the session-by-session plan, Deposition Witness Preparation Checklist: A Practical Checklist for the desk version, and Witness Preparation Toolkit: Session Agendas, Instruction Sheets, and Practice Examinations for the agendas, scripts, and instruction sheets. Research tools like UpLaw (uplaw.us) can help you find your own circuit's treatment of Rule 612 and former-employee privilege, which is where this area differs most. Nothing here is legal advice on a particular deposition, and the forum's own rules or a judge's standing order may change the answer. If you have one of these depositions coming and would like a second opinion on the plan, the firm is happy to talk it through.

Related Documents

Related Articles

• The Art of Defending Depositions in Federal Court: A Comprehensive Guide: the broader strategy for the defending lawyer.
• Deposition Objections and Instructions Not to Answer: What Rule 30 Allows and What Gets Lawyers Sanctioned: the full treatment of Rule 30(c)(2) and the conferral debate.
• Remote Video Depositions: Logistics, Remote Exhibits, Objections, and the Off-Camera Coaching Problem: how video changes the coaching risk.
• Attorney-Client Privilege and Work Product for Businesses: Upjohn, In-House Counsel, and the Common Interest: the privilege framework beyond the deposition.
• Using Depositions at Trial and on Summary Judgment: Rule 32, Designations, Errata Sheets, and Impeachment: what happens to the transcript afterward.
• Rule 502 and Inadvertent Production: Waiver, Clawback Agreements, and Why Every Case Needs a 502(d) Order: limits on waiver when privileged material gets out.
• Data Breach Class Actions: Article III Standing, Negligence Claims, and Forensic Report Privilege: another setting where courts test whether preparation materials stay protected.

Related Guides

• Preparing Yourself or Your Witness for a Deposition: A Practical Guide: the step-by-step companion to this article.
• Preparing and Defending a Rule 30(b)(6) Deposition: for the organizational witness.
• Handling Objections, Coaching, and Misconduct at a Deposition: A Practical Guide: what to do once the witness is sworn.

Related Checklists

• Deposition Witness Preparation Checklist: A Practical Checklist: the phased desk checklist for preparing a witness.
• Defending a Deposition Checklist: A Practical Checklist: tasks for the defending lawyer beyond preparation.
• Internal Investigation and Upjohn Warning Checklist: A Practical Checklist: the warning in its original setting.

Related Toolkits

• Witness Preparation Toolkit: Session Agendas, Instruction Sheets, and Practice Examinations: session agendas, instruction sheets, scripts, and a former-employee letter.
• Deposition Conduct Toolkit: Objection Scripts, Record-Making Language, and Rule 30(d) Motions: scripts for the record during the deposition.