United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JEFFREY COLE, MAGISTRATE JUDGE
have filed a motion to compel continuation of the deposition
of Anthony Carparelli, which they suspended after about 4
hours of questioning on November 5, 2019. [Dkt. #107]. They
ask that the deposition be continued with Mr.
Carparelli's personal counsel and that counsel for
plaintiffs be excluded, that the transcript be sealed (it
already was [Dkt. # 111]) and for an extension of time to
complete the deposition, as discovery closed December 13,
2019. [Dkt. #106]. The motion is denied for the following
the motion does not comply with Local Rule 37.2. Under the
Local Rule, the court will “refuse to hear any and all
motions for discovery . . . unless the motion includes a
statement (1) that after consultation in person or by
telephone and good faith attempts to resolve differences they
are unable to reach an accord, or (2) counsel's attempts
to engage in such consultation were unsuccessful due to no
fault of counsel's. Where the consultation occurred, this
statement shall recite, in addition, the date, time and place
of such conference, and the names of all parties
participating therein. Where counsel was unsuccessful in
engaging in such consultation, the statement shall recite the
efforts made by counsel to engage in consultation.”
the motion claims the parties engaged in a “meet and
confer process”, the only exchange between counsel,
according to defendants' “statement”,
consisted of two emails. [Dkt. # 107, at 6-7]. That does not
comply with the rule which clearly requires conference in
person or by telephone. The requirements of the local rule
are not met by letters or emails. BankDirect Capital
Fin., LLC v. Capital Premium Fin., Inc., 343 F.Supp.3d
742, 744 (N.D. Ill. 2018); In re Fluidmaster, Inc., Water
Connector Components Prod. Liab. Litig., 2018 WL 505089,
at *2 (N.D. Ill. Jan. 22, 2018)(“Local Rule 37.2
requires an in-person or telephonic meet and confer and
cannot be satisfied by the exchange of emails.”);
Geraci v. Andrews, 2017 WL 1822290, at *1 (N.D. Ill.
May 5, 2017) (“Local Rule 37.2 makes it plain that
letters and emails don't count, and with good
reason.”).; Infowhyse GmbH v. Fleetwood Grp.,
2016 WL 4063168, at *1 (N.D. Ill. July 29, 2016)(“The
command in the rule could not be more explicit. Emails and
letters are not enough under Rule 37.2.”).
the requirement of conferring in good faith has real meaning
beyond oburately maintaining a position and refusing to
negotiate as the parties' emails depict them doing here.
See, e.g., Chicago Regal Council of Carpenters
Pension Fund v. Celtic Floor Covering, Inc., 316
F.Supp.3d 1044, 1046 (N.D. Ill. 2018)(“An ultimatum on
one side, met with steadfast defiance on the other, is not a
good faith discussion.”); Gunn v. Stevens Sec.
& Training Servs., Inc., 2018 WL 1737518, at *3
(N.D. Ill. 2018)(“A party that steadfastly maintains a
position without support is not engaging in a good faith
discussion.”); Infowhyse GmbH v. Fleetwood
Grp., 2016 WL 4063168, at *1 (N.D. Ill. 2016)(“A
single phone call in three months regarding a dispute that
has engendered nearly 500 pages of briefs and exhibits
doesn't come close to sufficing.”).
the Federal Rules of Civil Procedure dictate very limited
circumstances in which a party my unilaterally terminate a
deposition as the defendants did here. Under Fed.R.Civ.P.
30(d)(3), the defendants had to file a motion to
terminate the November 5th deposition
“during the deposition.” Fed.R.Civ.P.
30(d)(3) (emphasis supplied). But, the defendants filed no
such motion, not on November 5th; not on November
14th (when they were next before Judge Seeger
[Dkt. #106]), not even on December 2nd, when they
filed their motion to continue the deposition they had chosen
to end, without leave of court. And even this came a month
after they unilaterally terminated Mr. Carparelli's
deposition. In order to suspend a deposition, an attorney
should suspend the deposition, state the problems on the
record, and apply to the court immediately. See United
States ex rel. Powell v. Am. Intercontinental Univ.,
Inc., 2013 WL 6490995, at *3 (N.D. Ill.Dec. 10, 2013);
NDK Crystal, Inc. v. Nipponkoa Ins. Co., 2011 WL
43093 at *4 (N.D.Ill. Jan. 4, 2011). Although the immediacy
requirement may be overlooked when the movant is pro se,
Powell, 2013 WL 6490995, at *3; Burnett v. City
of Herrin, 2011 WL 4007377 at *1 (S.D.Ill. Sept. 8,
2011), that is not the situation here. Defendants not only
failed to act immediately, but that they waited until about
ten days before discovery closed. The Motion is denied.
 It should be noted that Mr. Carparelli
testified early on that counsel for his employer, Mr. Maier,
was representing him at the deposition and that he was not
his personal lawyer. (Deposition Trans., at 10). Mr. Maier
also notified defendants of his representation of both Mr.
Carpelli and IREH for the purposes of the deposition months
earlier. Mr. Carpelli also testified early on that, in
addition, he had prepared with his personal lawyer, Mr.
Turner. (Deposition Trans., at 12). So defendants had the
facts, and whatever apparent complications those might
illuminate, at their fingertips at least four hours before
they terminated the deposition. Moreover, although they
concede that they suspected who the whistleblower was, they
did not get around to raising questions about that until
shortly before they terminated the deposition, at which time,
testimony proceeded without objections until questioning
touched on discussions Mr. Carparelli had with counsel.
(Deposition Trans., at 103-106).
Discussions with one's counsel certainly would
appear to be privileged. United States v. Bey, 772 F.3d 1099
(7th Cir. 2014). See also discussion and cases
cited in Motorola Sols., Inc. v. Hytera Commc'ns
Corp., No. 17 C ...