Rambo as Potted Plant: Local Rulemaking's Preemptive Strike Against Witness-Coaching During Depositions
Taylor, David H.
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Several federal district courts have enacted rules that seek to preempt attorneys from interfering with the discovery process through improper "witness-coaching" by prohibiting an attorney from engaging in off-the-record consultation with his or her client-witness during the course of a deposition. Some argue that such rules intrude into the attorney-client relationship and relegate the role of the attorney to that of a "potted plant" for the sake of curbing the potential for discovery abuse. This article analyzes the varying formulations of the no-consultation rule and discusses how this seemingly innocuous rule is remarkable in two main respects. First, the rule represents much of what critics of local rulemaking have decried. Second, the no-consultation rule represents the nadir of attempts to regulate abusive attorney conduct by assuming that attorneys will act unethically if given the opportunity. Finally, this article discusses the proposition that where the district courts feel compelled to pursue this path, the best approach is the least intrusive one. The goals of the no-consultation rule can be accomplished simply by prohibiting attorney-client consultations while a question is pending. This approach prevents direct coaching of a witness as to a pending question, but allows for the legitimate uses of off-the-record conferences. Therefore, the functions of an attorney serving a client and aiding the tribunal are not unnecessarily supplanted.