Untangling Knots in the State Discovery Rule

Illinois Supreme Court Rule 212 always has been an archaic tool in discovery. Trial attorneys across the state are well aware of its unique requirements.

It provides, in part, that two depositions must be taken of the same witness. The first is a discovery deposition for investigatory and fact-finding purposes. The second is an evidence deposition that may be read at trial to preserve the testimony of a witness.

The Rule was amended last year to ease the strict restrictions regarding the introduction of a discovery deposition at trial. Specifically, subparagraph (a)(5) was added in 2001 to permit a discovery deposition to be introduced into evidence at trial under specified circumstances.

It provides that upon reasonable notice to all parties the discovery deposition of a witness who is neither a controlled expert nor a party may be used as evidence at trial if the deponent is unable to attend or testify because of death or infirmity and " if the court, based on sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties."

Sound fair? Think about it. It can cut both ways. The rule can be the only evidence on a point that would otherwise be lost on the jury or it can become a sword if it is being used as a clever tactical move to sneak in what was only to be a discovery deposition.

For instance, if your opponent sends notice of a discovery deposition and it ultimately turns into a evidence deposition under this new section, it may be a tactical blunder if you did not question the witness as vigorously as you had planned or failed to introduce certain issues for strategical purposes, intentionally waiting for the witness’ testimony in court.

The changed rule means that the practitioner has to think through tactical moves more carefully prior to taking a discovery deposition. This could arise, for example, in cases involving the ill or the elderly who may not live to submit to an evidence deposition or to testify in person at trial. Under the amended rule, the trial attorney may find it necessary to change the approach in the initial deposition.

Personally, I think the change in Illinois rule does not go far enough. Although Illinois has aligned itself more closely with the federal rule, it should have adopted Federal Rule of Civil Procedure 32 altogether and allowed for one deposition prior to trial. This not only saves time and expense, it allows trial attorneys to better prepare for the exact use of the deposition down the road.

Federal Rule of Civil Procedure 32 provides that a deposition may be used against any party who was present or had reasonable notice thereof for any purpose permitted by the Federal Rules of Evidence if the witness is:

(a) dead,

(b) at a distance greater than 100 miles from the place of trial or hearing, unless the absence was produced by the party offering the deposition, or

(c) unable to testify because of age, infirmity or imprisonment.

The deposition also could be used if :

(d) the party offering the deposition is unable to produce the attendance of the witness by subpoena of if

(e) " exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used."

The federal rule is more broad, particularly give the catch- all subparagraph (e), but it also allows for the court to make a determination of whether the witness is important to the case and if the trier of fact should be allowed to hear the evidence based upon the " interest of justice."

Certainly, if the new Illinois rule is being manipulated to read a deposition into trial record because the party is fearing the witness may not be persuasive in person, it should not be allowed; and a denial of due process argument is in order.

But, trial judges are smart. They know when someone is trying to pull the wool over their eyes; and lawyers point out opponents’ misdeeds, as well.

The amendment to Illinois Supreme Court Rule 212 is so new that it is untested in the courts. It awaits to be seen if it is an improvement in discovery practice or if it merely opens the door a crack to unpredictability and provides a loophole for potential unfair practice.