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Taking or Defending Depositions of In-House Counsel: Strategic, Substantive, and Ethical Considerations

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, July 26, 2022

Recorded event now available

or call 1-800-926-7926

This CLE course will enlighten in-house counsel and their trial lawyers on issues that can potentially damage the corporation when in-house counsel is noticed or subpoenaed for a deposition. The panel will explore motions to quash or limit such examinations, permissible lines of inquiry during these depositions, issues related to preparing the witness, and pursuing privilege objections.


It's an in-house lawyer's worst nightmare. In the middle of monitoring an active transactional and litigation docket, a deposition notice arrives, specifically naming the in-house lawyer. Now what?

When in-house counsel is in the vortex of the facts and events causing the litigation or is the only or primary person with a thorough understanding of the underlying facts in a transaction gone awry, a deposition notice is far from out of the question. When, how, and through whom the "issue" in the underlying case found its way to the counsel's office can be vital information.

These depositions raise issues of attorney-client privilege. First, privileged communications must involve seeking or imparting legal advice. Given the evolving role of corporate counsel in business decisions, not every interaction involving counsel will meet this test.

Second, when an entity--not an individual--is the client, not every communication counsel has with employees will fall within the privilege. If an entity takes preventive steps to identify and protect privileged communications and minimize the number of non-privileged communications, the deposition can be far less frustrating for the in-house lawyer under oath and far less entertaining or rewarding for the party seeking testimony.

On the other side of the battle, trial counsel preparing to depose an in-house lawyer on the other side must strategically word questions to avoid expressly calling for privileged information. Both the questioning and defending lawyer, and the lawyer-witness, should be well versed in the law of privilege waiver. It's not just the "one question" that may be at stake.

Listen as our experienced panel discusses these issues and drills down to levels of detail that will provide the expertise necessary when encountering in-house counsel depositions.



  1. Application of Federal Rules of Civil Procedure to depositions of in-house counsel
  2. Key court decisions impacting depositions of in-house counsel
  3. Responding to deposition notices and subpoenas
  4. Protecting privileged information
  5. Ethical components of testifying


The panel will review these and other key issues:

  • What guidance do the Federal Rules of Civil Procedure and relevant case law provide on the deposition of in-house counsel?
  • How can in-house counsel prepare for a deposition sure to raise privilege, including the ethics of preparing to address those very issues?
  • How can in-house counsel best distinguish between business and legal advice when responding to questions during depositions? To what extent can non-attorney-client privileged, but still confidential, business advice be protected?
  • Well in advance of "deposition day," what practical tactics can aid in-house counsel in responding to deposition notices or subpoenas, particularly if the deposition notice accompanies a Rule 45 subpoena before any lawsuit is filed against the in-house counsel's client (and therefore, any external lawyer is engaged to defend a case)?


Gevertz, David
David Gevertz

Baker Donelson Bearman Caldwell & Berkowitz

Mr. Gevertz is a trial lawyer. He tries employment discrimination, wage and hour, non-compete, whistleblowing, and...  |  Read More

Gibson, Stanley
Stanley M. Gibson

Partner and Chairman, Patent Litigation Group
Jeffer Mangels Butler & Mitchell

Mr. Gibson is an experienced trial lawyer, who has focused on high-stakes cases involving...  |  Read More

Pastor, Sherilyn
Sherilyn Pastor

McCarter & English

Ms. Pastor is Practice Group Leader of her firm's Insurance Coverage Group. She is an experienced trial...  |  Read More

Saiter, Cindy
Cindy Saiter

Scott Douglass & McConnico

Ms. Saiter's practice includes a wide range of complex commercial litigation with an emphasis in technology...  |  Read More

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