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Potential Attorney-Client Communication Privilege Waiver During Depositions

Most are aware of the attorney client privilege, which protects the subject of communication between the lawyer and client made in furtherance of legal services. See NRS 49.095. However, the Nevada supreme court recently limited the privilege during discovery depositions. Although it appears that attorneys and witness/clients may freely confer during an unrequested recess in a deposition, an attorneys may not specifically request a break to confer with a witness in a deposition unless the purpose of the break is to determine whether to assert a privilege. Furthermore, the attorney must make a record of the confidential communications promptly after the deposition resumes in order to preserve the attorney-client privilege. See Coyote Springs Inv., LLC v. Eighth Judicial Dist. Court, 347 P.3d 267, 273 (2015). This raises the possible scenario in which the opposing counsel could inquire as to the content of attorney-client communication if an unprepared lawyer or witness asks for a break during a pending question without properly noting the purpose is to assert a privilege and subsequently making the record in regards to the privilege.