McKinley Infuser, Inc. v. Zdeb
2001 WL 705680, 2001 U.S. Dist. LEXIS 13873, 200 F.R.D. 648 (2001)
Rule of Law:
Counsel may confer with a deponent during deposition recesses and breaks, provided no question is pending, and counsel is permitted to cross-examine their own client during a deposition to clarify or complete the record.
Facts:
- Brian Zdeb, a defendant in the lawsuit, was deposed by the plaintiffs for four days.
- During the deposition, Zdeb's counsel indicated an intention to question Zdeb after the plaintiffs finished their examination.
- The plaintiffs concluded their questioning at 5:25 p.m. on a Friday.
- Defense counsel declined to begin his questioning immediately due to the late hour.
- The parties agreed to pause the deposition and resume weeks later, on June 12, 2001, solely for the defense counsel's questioning.
- The plaintiffs sought to prevent Zdeb from speaking with his lawyer during this interim period and to prevent the defense counsel from questioning Zdeb at all.
Procedural Posture:
- Plaintiffs sued Defendants (including Zdeb) in the United States District Court.
- Plaintiffs deposed Defendant Zdeb but the deposition was adjourned before defense counsel could cross-examine.
- Plaintiffs filed an Amended Verified Motion for Protective Order seeking to restrict Zdeb's communications with counsel and restrict further questioning.
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Issue:
Does a court have the authority to prohibit a party-deponent from conferring with their counsel during a significant recess between deposition sessions, or to preclude the deponent's counsel from questioning the deponent after opposing counsel has concluded their examination?
Opinions:
Majority - Magistrate Judge Boland
No. The Court held that barring attorney-client consultation during recesses is unreasonable and that a deponent's counsel has a right to examine their client. The court rejected the strict approach of 'Hall v. Clifton Precision,' which prohibited private conferences except for privilege. Instead, the court adopted the reasoning of 'In re Stratosphere,' determining that the truth-finding function of a deposition is adequately protected as long as conferences are prohibited while a specific question is pending. The court reasoned that prohibiting consultation during a weeks-long break would lead to the 'absurd' result of barring communication up through trial. Furthermore, the court affirmed that fact-finding is a 'two-way street,' and defense counsel must be allowed to question their own client to clarify the record, correct misunderstandings, and prevent the creation of 'sham' fact issues that might otherwise hinder summary judgment proceedings.
Analysis:
This decision represents a significant rejection of the rigid 'Hall' standard, which severely limited attorney-client interactions during depositions. By adopting the 'Stratosphere' approach, the court struck a balance between preventing improper coaching and preserving the attorney's ability to counsel their client. The ruling acknowledges the practical realities of litigation, noting that barring communication during long breaks (overnight or longer) is unworkable. Additionally, the court reinforces the strategic value of a deposition as a tool for both sides, affirming that a party's own lawyer can use the deposition to rehabilitate a witness or clarify the record immediately, rather than relying solely on post-deposition affidavits which are more vulnerable to being stricken as 'sham' attempts to create factual disputes.
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