13 Trial Lawyer • Winter 2024 In re Stratosphere Securities Litigation, supra, 182 FRD at 621. Several courts follow the Stratosphere holding that conferrals may occur during breaks but that opposing counsel may not demand breaks in questions or between questions and answers to confer unless to determine the existence of a privilege. See, Murray v. Nationwide Better Health, 2012 US Dist LEXIS 120592 at 4 (CD Ill Aug 24 2012); McKinley Infuser, Inc. Zdeb, 200 FRD 648, 650 (D. Colo 2011); Ecker v. Wisconsin Central Ltd, 2008 US Dist LEXIS 121200 (ED Wisc 2008). Some suggestions for conducting depositions: 1) There is no reason for not using Hall in Oregon Circuit courts. ORCP 36C(1), 39E(1) and 46A(2) give state courts the same authority to manage discovery as federal courts have under the federal rules. 2) Consider bringing the Hall opinion and order with you to depositions. If you are in a deposition with an opposing counsel who is only occasionally engaging in improper behavior, consider showing counsel the Hall opinion in a break, off the record, before taking any additional action. If you are in a deposition with an opposing counsel who is engaging in a pattern of improper behavior AND if you feel like it is affecting the witness’s answers consider adjourning the deposition to seek a protective order from the court. 3) At the beginning of your deposition don’t tell the witness or opposing counsel that they can take a break whenever they want. Rather, set a schedule of a morning break, a lunch break and a time to end the day just like what occurs in court. 4) If opposing counsel requests an unscheduled break consider objecting to the break. If opposing counsel takes the break, the questions to ask the witness are: Did you talk to your counsel during the break, what subjects did you discuss, and, if the subjects are ones raised in the deposition, what did counsel say? At this point, you will likely get an instruction not to answer but you have framed the issue of private conferrals for resolution by the court. Conclusion Attorneys often tolerate improper deposition conduct out of a belief that the courts will not intervene. The lesson I take from Hall is that judges will intervene when they see a party abusing the deposition process. Of course, they won’t intervene if we don’t ask them to. Stephen Brischetto is a solo practitioner who practices in the areas of employment and civil rights law in federal and state court both trials and appeals. His office address is 1500 SW 1st Ave., Ste. 1000, 97201. He can be contacted at slb@brischettolaw. com or 503-223-5814.
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