The debate continues—when may you discuss substantive issues with your client–deponent during deposition breaks? Some federal district courts, such as the District of South Carolina (L.R. 30.09(E)), flat-out prohibit it by local rule. Other courts apply common law and tend to follow either the strict prohibition announced in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), or the more practical approach the Nevada Supreme Court took in In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614 (D. Nev. 1998). I commend Brian R. Iverson’s excellent article on the subject for a good overview of the issue, analysis of the current state of the law, and a proposed new civil-procedure rule. See Give Me a Break: Regulating Communications Between Attorneys and Their Witness Clients During Deposition Recesses, 36 Geo. J. L. Ethics 497 (2023) (available here). You may also review my commentary at Todd Presnell & Kristi Arth, Privileges & Protections: TN & Sixth Circuit Law § 14.07[b][ii], The Privilege in Deposition Discovery (2026).
Secondary issues arise when a lawyer challenges opposing counsel’s client discussions during a deposition break, including whether and when sanctions may be warranted. One court thoughtfully addressed this issue—and an important threshold matter—and found the lawyer’s request for sanctions “nothing short of outlandish.” Strebel v. Scoular, No. 24 C 968, 2026 U.S. Dist. LEXIS 42519 (N.D. Ill. Mar. 2, 2026). You may read the opinion here. Let’s discuss it.
A Deposition Break and a Little Talk
In this Clean Air Act case, plaintiff’s counsel deposed defendant employees Reed and Zebrowski. In Reed’s deposition, the lawyers took a break and, upon Reed’s return to the witness chair, this colloquy ensued:
Q. Mr. Reed, did you speak with counsel during this break about anything?
A. No.
Q. Have you spoken to counsel during any of the breaks we’ve taken about this deposition?
A. I – we had a few words at some point. Like, I’m going upstairs to go to the bathroom because the downstairs bathrooms are occupied, and to get coffee.
Q. Okay. But did you talk about any of the questions or topics that we’ve discussed in the deposition with defense counsel?
Defense Counsel: Counsel, I’ll object to attorney-client privilege. You’re not entitled to know my discussions with Scoular’s witness and I’ll instruct the witness not to answer.
Q. Were there discussions about the substance of the deposition during any of the breaks that we’ve taken?
Defense Counsel: Counsel, same objection. I’ll instruct the witness not to answer.
Plaintiffs Counsel: Please certify that question.
Similarly, during Zebrowki’s deposition, this back-and-forth occurred:
Plaintiffs Counsel: Why don’t we take a five-minute break so I – I’ll load up some of the next exhibits.
(A short break was had)
Q. Mr. Zebrowski, during any of our breaks, have you discussed the substance of this deposition with counsel?
Defense Counsel: Objection, attorney-client privilege and – well, attorney-client privileged communications. I’ll instruct the witness not to answer.
Are Those Discussions Privileged?
When the deposition-break talk issue arises, the threshold question is whether the attorney-client privilege protects the discussions from disclosure. Too often the focus centers on whether deposition-break conversations are proper, not whether the privilege protects them. It is as if some believe a rule of privilege non-application exists for discussions during deposition breaks.
Here, plaintiffs’ counsel argued that the privilege did not apply in the first instance because the lawsuit involved pendent Illinois state-law claims and employees Reed and Zebrowski were not within the privileged control group under Illinois law. The court quickly dispensed with that argument, correctly, because plaintiffs were in federal court under federal-question jurisdiction (Clean Air Act) and, therefore, Upjohn’s subject-matter test applied and both employees fell safely within this zone of privilege protection. For more information on the subject-matter test and the control-group test, see Todd Presnell & Kristi Arth, Privileges & Protections: TN & Sixth Circuit Law § 14.06, Attorney-Client Privilege for Organizations (2026). And for more information on the choice-of-law issue, see Privileges & Protections: TN & Sixth Circuit Law § 2.02, Conflicts of Law in Federal Courts (2026).
The court held that the deponents’ pre-deposition discussions with defense counsel “fit squarely within the Upjohn framework.” And as for deposition-break discussions, the court said it “would analyze privilege protection for those communications under the Upjohn framework as well.”
So, while perhaps not directly holding that the privilege protects deposition-break discussions, the court certainly implied that the privilege shelters those discussions absent some type of improper deposition conduct.
Sanctions? Outlandish.
Even if the privilege applied, plaintiffs argued, lawyer–deponent conferences are improper because FRCP 30(c)(1) states that “the examination and cross-examination of a deponent proceed as they would at trial” and lawyers cannot stop trial proceedings to confer with their on-the-stand witnesses. But plaintiffs had no proof of improper conduct and essentially argued “for a categorical bar on attorney-deponent conferences during deposition recesses,” asking the court to presume improper witness coaching during those breaks. They asked the court to sanction the defendants by requiring the deponents, in re-depositions, to disclose all communications with lawyers and to produce all documents withheld on privilege grounds.
Analyzing the overall situation from a sanctions viewpoint—whether defense counsel engaged in improper conduct—the court found that defense counsel did not disrupt the proceedings to confer with his clients and declined to impose a categorical bar on attorney–client conferences during deposition breaks, “relying more on Stratosphere than Hall.” Indeed, the court noted that assessing the propriety of these conferences would require harmonizing “a deponent’s right to counsel during depositions, and with defending counsel’s ethical obligations to remonstrate with deponents who have given false testimony.”
The request for such an “extreme sanction,” therefore, annoyed the court:
The idea that the Court should sanction Scoular under these facts by ordering it to produce all of the documents it withheld or redacted under privilege assertion is nothing short of outlandish.
And the court found the request for lesser sanctions of reconvening the depositions—to essentially ask the deponents about the deposition-break discussions, which the privilege would protect—“equally unjustified.”