Pennsylvania Superior Court Rules Deposition Break Conversations Are Privileged

The original case, AmerisourceBergen Drug Corp. v. Curascript Inc., revolved around a liquidated damages provision in an agreement between pharmaceutical companies AmerisourceBergen and Curascript. During depositions, Curascript attorney James Monafo asked former vice president Alan Clock about his understanding of the provision. Upon cross-examination by Amerisource's attorney, Rudolph Garcia, and after several breaks, Clock's answers were different than those he'd given to Monafo.

As a result, Monafo asked if this was because he had discussed the issue with Garcia, which brought about a debate concerning whether the discussion was privileged. Curascript subsequently filed a discovery motion, and soon thereafter Abramson ruled that the deposition had to be reopened and Clock had to answer "all" questions pertaining to the aforementioned conversations.


In their argument before the Pennsylvania Superior Court regarding
this matter, however, AmerisourceBergen referenced a 2006 case wherein the Superior Court allowed an expert witness to converse with his attorney during deposition breaks. This ruling overturned a 1993 decision that found that all conversations were prohibited between the parties.

Ultimately, the issue with Abramson's ruling hinges on his use of the word "all." According to the memo, when deposing a witness, an attorney can ask if he or she has spoken with his or her attorney during breaks. Regardless of the answer, though, the questioning must stop there. The rest of the conversation — if one took place — is privileged.

In the Amerisource case, for instance, the deposition can be reopened and the former employee can be asked if he had a conversation with his attorney during the break. If he did not, then the deposition concludes. "If the answer is 'yes,' however, the deposition is similarly concluded, since we find no authority to permit an attorney to continue his questioning to ask a witness to disclose the contents of those discussions," the memorandum states. "We so decide since it seems certain that the next question, however skillfully crafted, would imperil the attorney-client privilege."

While this development is extremely beneficial for the individuals involved, namely Garcia and Clock, the memo does not serve as an absolute reversal of Abramson's decision. The main reason for this is that Judge C. Daniels and Senior Judges Stephen J. McEwen Jr. and Justin M. Johnson acknowledged that because no law currently in existence deals with how attorneys and their clients can interact during depositions, they would thus take a "guarded approach."