There’s No Sneaking Around FRCP Rule 30: Surreptitious Text Messages to Communicate with a Client During a Deposition Are Not Privileged

There’s No Sneaking Around FRCP Rule 30: Surreptitious Text Messages to Communicate with a Client During a Deposition Are Not Privileged

As text messages have become an increasingly common way for people to casually communicate, they are also being used as a method for attorneys to communicate legal advice to their clients.  However, the line must be drawn when attorneys try to use text messaging to communicate to their clients in secret during a court proceeding or deposition.

In Ngai v. Old Navy, the District of New Jersey decided whether text messages sent between an attorney and a deponent client during a deposition are protected by the attorney-client privilege.  The plaintiff Ngai sued Old Navy after injuring her eye on a clothing rack in one of the defendant’s stores.  The plaintiff’s counsel deposed the General Liability Claims Manager for GAP (“deponent”) to determine the chain of custody of the clothing rack.  Because the plaintiff’s counsel planned to ask only a limited number of questions, the deposition occurred through video conference with the deponent in California, the defendant’s pro hac vice counsel in Michigan, and the plaintiff’s counsel in New Jersey.

The deponent and the defendant’s counsel exchanged eleven text messages before the deposition and five messages during the deposition.  During the deposition, the defendant’s counsel inadvertently sent a message to the plaintiff’s counsel stating “[you] [are] doing fine,” intended for the deponent.  This alerted the plaintiff’s counsel to the possibility that the deponent and his counsel were communicating during the deposition.  The plaintiff’s counsel requested the opposing counsel to preserve the text messages exchanged during the deposition.

As part of the court’s granting of an earlier motion for defendant’s counsel to withdraw from the case, the court ordered the defendant to either produce the text messages or explain why the attorney-client privilege covers those communications.  The defendant argued that the text messages were communications protected by the attorney-client privilege, and additionally, the crime-fraud exception did not apply because the communications were not in furtherance of a crime.

Because the court had subject matter jurisdiction based on diversity, state privilege law of the forum governs according to Federal Rule of Evidence 501.  Under New Jersey law, in order to be privileged, a communication must be expressed between a client and an attorney for the purpose of obtaining legal advice, with the expectation that its content will remain confidential.  Disclosure to or in the presence of a third party destroys the confidential nature of the communication and renders the communication not privileged. 

The court found the text messages sent before the deposition to be privileged on grounds that they were communications to further the defendant’s legal interest in the then-upcoming deposition.  However, with regards to the messages sent during the deposition, under Federal Rule of Civil Procedure 30, attorneys should not engage in any conduct during a deposition that would not be allowed at trial.  Once trials and depositions begin, discussions between the attorney and deponent are prohibited to promote the goal of the discovery process of ascertaining the truth.  The potential for the attorney to influence the deponent’s answers is too high.  The only exception occurs when the attorney and client discuss the assertion of a privilege off the record during a deposition.

Although the text messages were private conversations between the defendant’s counsel and the deponent, they were not protected by the attorney-client privilege.  The defendant’s counsel violated Rule 30 by communicating with the deponent after she took the oath for the deposition to begin.  This conduct would not be allowed at trial.  The court deemed some of the communications made by counsel to be intended to influence the fact-finding goal of the deposition.  As a result, the court ordered the defendant to produce all of the messages sent during the deposition.

Alternatively, the court noted that even if the text messages sent during the deposition were privileged, the crime-fraud exception may require disclosure.  New Jersey courts interpret the crime-fraud exception broadly to require disclosure of communications between an attorney and client involving “virtually all kinds of deception and deceit, even though they might not otherwise warrant criminal or civil sanctions.”  As a matter of public policy, New Jersey limits the protection of privilege to situations where the client seeks lawful legal advice.

The use of video conferences for depositions creates the potential for abuse that attorneys will secretly communicate with their clients to influence the fact-finding process.  Courts must uphold the standards for in-person depositions during video conferences to prevent attorneys and clients from benefitting from the abuse of technology.

Author Bio: Suzanne Janusz will receive her J.D. from Seton Hall University School of Law in 2012.  She received her B.A. from Rutgers University, New Brunswick, summa cum laude in 2008.  She currently serves as the Managing Editor for the Seton Hall Journal of Sports and Entertainment Law.

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