LM Insur. Co. v. Aceo, Inc., No. 08 C 2372, Slip Op. (N.D. Ill. July 7, 2011) (Cole, Mag. J.).
Judge Cole granted a motion to compel further deposition testimony of a witness. During a deposition, the witness testified that she thought an "individual broker" may have received "’return’ (kickback)." When asked to identify the broker, her counsel objected that the question called for speculation and coached the witness through a speaking objection that she should not answer without "clear information." Counsel then took the witness out of the room while a question was pending for a discussion which lasted thirty minutes. After the discussion, the witness stated that she had been "speculating" and that "I don’t feel like what I said was correct." The Court noted that counsel’s coaching was wrong, but that the counsel’s most "disturbing" action was removing the witness to confer outside the deposition room. Furthermore, counsel never offered a justification for the conference during questioning. And in any event, the only acceptable explanation was determining whether the answer would have been privileged. However, there was no indication of that. Because of the deposition misconduct, the Court ordered that the deposition would continue in-court pursuant to the Court’s supervision. The Court also ordered an in camera conference with the witness and her counsel to determine whether there is any privilege protecting what counsel told the witness during the break in the original deposition. Finally, the Court declined to consider whether further action was necessary at the time of the opinion.