The attorney-client privilege is one of the most sacrosanct privileges known to law. It is founded on the principle that a lawyer can adequately defend the client if, and only if, the client is free to disclose everything about the client’s case whether good, bad, or ugly. The attorney-client privilege is such an institution in American jurisprudence that most attorneys believe that the privilege will always protect confidential communications unless the client voluntarily waives the privilege. Based upon new case law from the Nevada Supreme Court, this view of the attorney-client privilege, which prevails in the minds of most attorneys, is dangerously erroneous if you are in the midst of a deposition.
Specifically, in the case of Coyote Springs, LLC v. District Court, the Nevada Supreme Court held that attorneys may confer with witnesses during an unrequested recess or break in a discovery deposition. However, attorneys may not request a break to confer with witnesses. If an attorney does request a break to confer with a witness during a deposition, then the content of those discussions is not protected by the attorney-client privilege. In other words, the coaching and strategy discussions during the private conference — even the dissembling which might be encouraged by an unethical attorney – must be disclosed upon inquiry when the deposition resumes. The only exception to the Nevada Supreme Court’s holding in Coyote Springs is if the private conference was necessary to determine whether, in fact, to assert a privilege.
The Coyote Springs holding is a dramatic departure from the common understanding of the attorney client privilege, and many Nevada lawyers are currently unaware of it. For years, it has been common practice to take breaks during depositions during which the attorney and client touch bases on how the deposition is going and what things might be damaging the client’s case. Sometimes these discussions are nothing more than the attorney saying, “You are doing great!” In other cases, the discussion consist of an attorney chastising the client for doing or saying certain things on the record. In Coyote Springs, for example the conference between the attorney and client resulted in the witness entirely reversing prior testimony.
It does not take a seasoned jurist to conclude that the disclosure of private conferences between attorney and client can cause monumental harm to the client’s case. As such, if you are going to be deposed in Nevada, do not assume your attorney is aware of the Coyote Springs case. Ask your attorney if he or she is aware of Coyote Springs and understands its holding. If not, demand that your attorney read the case and discuss it with you long before you raise your right hand.