Depositions are intimidating. Unlike other forms of discovery, there is no advanced written warning of what the questions in a deposition will be. The deponent must be prepared to answer the questions honestly.
“The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules. The deponent may be questioned by any party as if under crossexamination.” Ill. Sup. Ct. R. 206(c)(1) (emphasis mine).
Deposition questions can be anything without almost any limit as to the nature of the questions. With the sheer volume of issues possible in an Illinois divorce, the possible questions are limitless and may be unknown…until they are finally asked under oath.
A deponent (the person being asked the questions) has the right to bring counsel to their deposition. That counsel may object to any question as the question comes up.
“Objections at depositions shall be concise, stating the exact legal nature of the objection.” Ill. Sup. Ct. R. 206(c)(3)
“When information or documents are withheld from disclosure or discovery on a claim that they are privileged pursuant to a common law or statutory privilege, any such claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced or disclosed and the exact privilege which is being claimed.” Ill. Sup. Ct. R. 201(n)
If a question calls for information which could be deemed privileged, the deponent’s lawyer can politely say, “I’m not allowing my client to answer…[so] certify the question to the circuit court.” Badea v. Phillips, 906 NE 2d 615 – Ill: Appellate Court, 1st Dist., 1st Div. 2009
The judge can later decide if the question really did call for privileged information.
Beyond the ability to instruct a deponent to not answer a question under the one objection of privilege, can a lawyer confer with the deponent about how to answer a deposition question?
The deponent is supposed to tell the truth and nothing but the truth. “The officer before whom the deposition is to be taken shall put the witness on oath” Ill. Sup. Ct. R. 206(f)
What would be the point of talking to a deponent who is under oath to tell the truth except to request that the deponent NOT tell the truth.
“A lawyer shall not…counsel or assist a witness to testify falsely” Ill. Sup. Ct. R. 3.4(b)
“[A]n attorney who procures false evidence, knowing it to be false, with the intention of deceiving the court and thus interfering with the due administration of justice, is … guilty of contempt of court.” Beattie v. People, 33 Ill. App. 651 (1889)
“Because a deposition generally proceeds as at trial, courts have held that once a deposition starts, counsel has no right to confer during the deposition.” LM INSURANCE CORP. v. ACEO, INC., Dist. Court, ND Illinois 2011
A lawyer talking to a deponent during scheduled breaks or when a question is not pending is probably okay. A lawyer interrupting a deposition to discuss with the deponent whether to assert privilege is definitely allowed.
“[T]he blanket prohibition on conferences between defense counsel and Defendant Northrup is contrary to law.
Even the most restrictive of the cases that have addressed restrictions on conferences between a deponent and his lawyer during a deposition has allowed such conferences when the purpose of the conference is to decide whether to assert a privilege. Hall v. Clifton Precision, 150 F.R.D. 525, 529 (E.D. Penn. 1993) (prohibiting any conferences between a deponent and his lawyer except when the purpose of the conference is to decide whether to assert a privilege). Moreover, several cases have held that the Hall case goes too far by prohibiting any conferences except when the purpose of the conference is to decide whether to assert a privilege. For example, In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 621 (D. Nev. 1998), the court agreed with the Hall court’s goal of preventing the coaching of witnesses but declined to adopt the Hall court’s “strict requirements.” Id. at 621. The Stratosphere court held:
“This Court will not preclude an attorney, during a recess that he or she did not request, from making sure that his or her client did not misunderstand or misinterpret questions or documents, or attempt to help rehabilitate the client by fulfilling an attorney’s ethical duty to prepare a witness. So long as attorneys do not demand a break in the questions, or demand a conference between questions and answers, the Court is confident that the search for truth will adequately prevail.” Id.; see also McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001) (following Stratosphere); see, e.g., Ecker v. Wisconsin Central Ltd., 2008 WL 1777222, at *3 (E.D. Wisc. 2008) (finding that “mere fact that counsel for the defendant privately conferred with the witness during a break after the plaintiff completed his examination does not warrant sanctions,” but also suggesting that private conferences that occurred when opposing counsel was questioning the witness or when a question was pending would be improper).
In addition, the American Bar Association, in its 2004 Civil Discovery Standards, takes the position that an attorney for a deponent may have a private conference with the deponent during the deposition only to “determine whether a privilege should be asserted or to enforce a court-ordered limitation on the scope of the discovery.” ABA Civil Discovery Standards, p. 34. The ABA also takes the view that an attorney for the deponent can communicate with the deponent during a recess. Id.” Murray v. NATIONWIDE BETTER HEALTH, Dist. Court, CD Illinois 2012
But, both the rule…and all the exceptions to the rules about a lawyer conferring with a deponent are Federal case law.
The keen reader will note that my articles ONLY cite Illinois state case law when possible. That is because ALL Illinois state appellate decisions are binding on Illinois trial courts. All Illinois case law is good Illinois case law (unless there is other, more recent Illinois case law that says otherwise).
“A decision of the appellate court, though not binding on other appellate districts, is binding on the circuit courts throughout the State.” State Farm Fire and Cas. Co. v. Yapejian, 605 NE 2d 539 – Ill: Supreme Court 1992
“Illinois’ “internal” choice of law rule is that a state trial court is bound by the decisions of all the intermediate Appellate Courts.” Commercial Discount Corp. v. King, 552 F. Supp. 841 – Dist. Court, ND Illinois 1982
A binding case law precedent is one “that a court must follow.” Black’s Law Dictionary (11th ed. 2019)(emphasis mine)
Any non-Illlinois appellate decisions (such as the ones I’ve cited above regarding counsel conferring with their client during a deposition) are merely persuasive on an Illinois trial court.
A persuasive precedent is “a precedent that is not binding on a court , but that is entitled to respect and careful consideration.” Black’s Law Dictionary (11th ed. 2019)(emphasis mine)
“It is well settled that federal decisions are not binding on Illinois state courts. Despite the nonbinding nature of federal decisions, they can be considered to be persuasive authority, and they may be followed if the state court believes the federal analysis to be reasonable and logical.” Werderman v. Liberty Ventures, LLC, 857 NE 2d 320 – Ill: Appellate Court, 2nd Dist. 2006 (Citations Omitted)
So, a lawyer can stop the deposition and talk to their client…or not. It is not crystal clear what exactly is allowed during a deposition. If a lawyer chooses to stop a deposition to confer with a client, they can expect to have that issue brought before the judge…where the judge will make some kind of decision based on the facts and circumstances (because there is no binding law).
“It is within the trial court’s discretion to weigh the equities and make the final determination with respect to discovery orders.” Yassin v. Certified Grocers of Illinois, Inc., 502 N.E.2d 315, 326-27 (111. App. Ct. 1986)
A better solution is to properly prepare the deponent in advance of the deposition. Will the questions really be that much of a surprise? Is the truth that variable?