United States District Court, E.D. Wisconsin
ORDER OVERRULING DEFENDANT'S OBJECTION (DKT. NO.
35) AND ADOPTING MAGISTRATE JUDGE'S ORDER (DKT. NO.
PAMELA PEPPER United States District Judge.
November 16, 2016, Magistrate Judge David E. Jones issued an
oral order related to a discovery dispute between the
parties. Dkt. No. 33. Defendant Wisconsin Central, Ltd.
objected to that order. Dkt. No. 35. The court overrules the
defendant's objection, and adopts Judge Jones' order.
U.S.C. §636(b)(1)(A) and Federal Rule of Civil Procedure
72(a) govern the district court's review of a magistrate
judge's determination of non-dispositive matters, such as
the discovery issues involved here. Section 636(b)(1)(A)
authorizes a district court to modify or vacate an order that
is “clearly erroneous or contrary to law.”
“To be clearly erroneous, a decision must strike [the
court] as more than just maybe or probably wrong; it must . .
. strike [the court] as wrong with the force of a
five-week-old, unrefrigerated dead fish . . . . [I]t must be
dead wrong.” Parts & Elec. Motors, Inc. v.
Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).
“An order is contrary to law when it fails to apply or
misapplies relevant statutes, case law, or rules of
procedure.” Henry v. Centeno, No. 10 C 6364,
2011 WL 3796749, at *1 (N.D. Ill. Aug. 23, 2011) (internal
quotation marks omitted) (citation omitted).
discovery dispute at issue arose during the deposition of one
of the defendant's employees, Rueben Witt, who was one of
the conductors responsible for training the plaintiff. Dkt.
No. 35 at 1. The defendant allegedly terminated the plaintiff
based on negative feedback it received about him from Mr.
Witt. Id. The plaintiff noticed Mr. Witt's
deposition for November 16, 2017. During that deposition, the
plaintiff's counsel asked Mr. Witt if he recalled another
trainee, Mr. Skort, being injured on the job while Mr. Witt
was training him. Dkt. No. 36-1 at 13. Witt responded that he
remembered that fact. The plaintiff's counsel then asked
Witt, “What do you recall about that.”
Id. Before Mr. Witt could answer that question, the
defendant's counsel instructed Mr. Witt that he could
“provide testimony regarding his knowledge regarding
the fact that Mr. Skort was injured, that he had an injury to
a leg, that it happened while getting on or off moving
equipment, but instruct the witness not the [sic] testify
further regarding the circumstances of Mr. Skort's
plaintiff's counsel stated on the record that she
disagreed with that instruction, and explained why, but
defense counsel responded that “the instruction
stands.” Id. at 13-14. The defendant's
counsel explained that her instruction to the witness that he
limit his answer was based on her opinion that the subject
matter was irrelevant to this case, and “highly related
to another piece of potential litigation.” Id.
at 14. The plaintiff's counsel confirmed: “So
you're instructing him not to answer questions about what
he observed with this injury on the job?” Defense
counsel responded, “I set the parameters of what he may
testify about, and that's it.” The plaintiff's
counsel continued to protest, and the parties did not resolve
the issue at the deposition. Id.
their inability to resolve the dispute, the parties contacted
Judge Jones by telephone to request a hearing. Judge Jones
conducted the hearing by phone and, after considering the
parties arguments, ordered that (1) the plaintiff's
counsel was permitted to question Mr. Witt on the topic of
Mr. Skort's injury to determine if he was a good
comparator; (2) that portion of the deposition would be
sealed for attorney's eyes only; and (3) the deposition
would be continued until the attorney representing the
defendant with regard to Mr. Skort's personal injury
claim could be present. Dkt. No. 35-1 at 5. Judge Jones
further ordered that neither the attorneys representing the
defendant in this case nor the attorney representing the
defendant with regard to Mr. Skort's potential personal
injury claim under the Federal Employers Liability Act could
communicate with Mr. Witt before his deposition resumed.
Id. at 5-6.
defendant objects to Judge Jones's order on the grounds
that the portion of the order prohibiting the defendant's
counsel from communicating with Mr. Witt deprived the
defendant of due process and was contrary to law. Dkt. No.
35. The defendant argues that there is no rule in the Eastern
District prohibiting a party from consulting with its witness
during a break in a deposition when there was no question
plaintiff responds that the cases the defendant cites in
support of its due process argument involve denial of access
to any counsel, and thus denial of access to the
court system. Dkt. No. 36 at 5-6. The defense also argues
that there was a question pending when defense
counsel instructed Witt not to answer, and that Judge Jones
appropriately exercised his discretion in ordering defense
counsel not to talk with Witt until after the resumption of
the deposition. Id. at 7-8.
Jones' direction that no counsel could communicate with
Mr. Witt prior to the continuation of Witt's deposition
does not violate the defendant's due process rights, and
is not clearly erroneous or contrary to law. Judge Jones'
decision did not deny the defendant counsel-counsel continues
to represent the defendant (as evidenced by this dispute),
and the defendant continues to have full access to the legal
Jones correctly determined that the attorneys representing
the defendant in this case had an adequate opportunity to
prepare Mr. Witt for his deposition, and that the line of
questioning the plaintiff's counsel was
pursuing-potential comparators-was “within the normal
types of preparation that . . . defending counsel would have
been expected to get into.” Dkt. No. 35-1 at 5.
Alternatively, the defendant's FELA counsel could have
prepared Mr. Witt to testify about potential comparators.
Based on the transcript of the hearing before Judge Jones and
the subsequent briefing, it appears that no lawyer prepared
Mr. Witt to testify on this topic, and the defendant
understandably wants a chance to do so. But the
defendant's counsel had that opportunity before the
deposition began, and the court cannot allow the
defendant's counsel to go back, in the middle of an
interrupted deposition, and prepare the witness on a topic
that counsel did not prepare the witness for before the
a deposition generally proceeds as at trial, . . . courts
have uniformly held that once a deposition starts, counsel
has no right to confer during the deposition” except to
determine if a privilege should be claimed. LM Ins. Corp.
v. ACEP, Inc., 275 F.R.D. 490, 491 (N.D. Ill. 2011)
(citing BNSF Ry. Co. v. San Joaquin Valley R. Co.,
2009 WL 3872043, *3 (E.D. Cal. 2009)) (collecting cases). The
defendant's counsel instructed Mr. Witt not to answer the
question of what Witt recalled about Skort's injury based
on relevance, not based on a claim of privilege. Witt did not
answer the question during his deposition, and it remained
pending when the parties asked Judge Jones to hear their
dispute and decide the issue. Dkt. No. 36-1 at 13-15. Under
these circumstances, Judge Jones was correct to analogize the
situation to a trial that had been adjourned during a
witness' testimony, and to direct that no counsel could
communicate with Mr. Witt regarding his testimony before his
conclusion, the court determines that Judge Jones's
decision did not violate the defendant's due process
rights, and was neither clearly erroneous nor contrary to
law. Accordingly, the court OVERRULES the defendant's
objections, Dkt. No. 35, and ADOPTS Judge Jones's