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In Villarreal v. Texas, No. 24-557, __ S. Ct. __ (U.S. Feb. 25, 2026), the Supreme Court addressed a split in the circuits, ruling that trial courts may issue an order prohibiting a testifying defendant in a criminal case from discussing his ongoing testimony with his lawyer during an overnight recess, provided the order permits discussions on all other constitutionally protected topics. The court adopted a content-based rule whereby testifying defendants retain a constitutional right to consult counsel about trial tactics, plea negotiations and witness availability, but there is no Sixth Amendment right to discuss the testimony itself during breaks.
The Villarreal holding derives from a criminal case and the accused’s Sixth Amendment right to counsel. Thus, Villareal does not directly apply in civil cases. Nonetheless, practitioners can anticipate potential increased scrutiny of lawyer-client communications during breaks in testimony, including in depositions.
Cases around the country, including in the 7th Circuit, have addressed this topic in a variety of settings and with differing views and results. A full analysis is beyond the scope of this column, but several are noteworthy as starting points. In Hunt v. DaVita, Inc., 680 F.3d 775, 780 (7th Cir. 2012), the Seventh Circuit in a civil case wrote, “The fact-finding purpose of a deposition requires testimony from the witness, not from counsel, and without suggestions from counsel. Coaching and private conferences (on issues other than privilege) that would be inappropriate during trial testimony are not excused during a deposition merely because the judge is not in the room.”
In Potashnick v. Port City Const. Co., 609 F.2d 1101, 1118 (5th Cir. 1980), the 5th Circuit in a civil matter held, “Recognizing that a civil litigant has a constitutional right to retain hired counsel, we hold that Judge Hand’s rule prohibiting a litigant from consulting with his attorney during breaks and recesses in the litigant’s testimony impinges upon that right.”
In Murray v. Nationwide Better Health, 2012 WL 3683397, at *4 (C.D. Ill. Aug. 24, 2012), the court traced various decisions, writing: “Even the most restrictive of the cases that have addressed restrictions on conferences between a deponent and his lawyer during a deposition has allowed such conferences when the purpose of the conference is to decide whether to assert a privilege. Hall v. Clifton Precision, 150 F.R.D. 525, 529 (E.D.Penn.1993) (prohibiting any conferences between a deponent and his lawyer except when the purpose of the conference is to decide whether to assert a privilege). Moreover, several cases have held that the Hall case goes too far by prohibiting any conferences except when the purpose of the conference is to decide whether to assert a privilege. For example, In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 621 (D. Nev. 1998), the court agreed with the Hall court’s goal of preventing the coaching of witnesses but declined to adopt the Hall court’s “strict requirements.” Id. at 621.
The Stratosphere court held: “This Court will not preclude an attorney, during a recess that he or she did not request, from making sure that his or her client did not misunderstand or misinterpret questions or documents, or attempt to help rehabilitate the client by fulfilling an attorney’s ethical duty to prepare a witness. So long as attorneys do not demand a break in the questions, or demand a conference between questions and answers, the Court is confident that the search for truth will adequately prevail.”
One article from the Illinois State Bar Association in 2014 provides a good summary of differing views on this topic: “When it comes to depositions, Rule 30 prevents witness-coaching by prohibiting attorneys from employing argumentative or suggestive speaking objections. The Rule also restricts an attorney from instructing the deponent to not answer a question unless it is necessary to preserve a privilege, enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3). But the Rule is silent on whether an attorney may discuss the substance of a client’s testimony during a break.”
The article continues, “There are only a few cases from Seventh Circuit courts examining the issue of whether an attorney may speak to a deponent during a break in a deposition. The courts appear split on this issue. Several courts in this Circuit have found that private conferences are permissible, but the most recent Northern District case emphatically prohibits such conferences.”
Practical Tips
Barring clear guidance from the assigned judge, practitioners should be cautious in discussions with witnesses during breaks, whether in deposition or trial. One should assume that opposing counsel might inquire about such discussions, and that the judge might require answers despite claims of privilege. Counsel could also consider reaching agreement on this subject before depositions (e.g., that counsel will not inquire of other counsel’s discussions with witnesses during breaks). In trial, it is prudent at the final pre-trial conference to learn the trial judge’s views on this topic.•
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Maley is a partner with Barnes & Thornburg LLP. You can contact him at [email protected].
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