USE OF DEPOSITIONS:LAW & TECHNOLOGY
Judge Lynn M. EganMs. Kathleen M. GroveJuly 17, 2015
DISCOVERY DEPOSITIONS AT TRIAL
The use of discovery depositions at trial is very limited & is governed by Supreme Court Rule 212(a).The limitations are premised on the fact that Illinois distinguishes between discovery & evidence depositions.Illinois is currently the only state in the country that distinguishes between discovery & evidence depositions.The Illinois Supreme Court Civil Justice Committee is evaluating whether to maintain this distinction – so stay tuned!
BASIC DIFFERENCES:DISCOVERY VS. EVIDENCE
Purpose: preserve evidence for trial.Relevance = evidence that tends to make the existence of any consequential fact more or less probable.Limited by rules of evidence.Proceeds as formally as at trial.
Purpose: ascertain the truth by exploring the facts.Relevance = not only what is admissible at trial, but that which leads to admissible evidence.Great “exploratory freedom.”Proceeds informally, with few technical objections.
FIRST STEP:PROPER IDENTIFICATION
It is essential that you properly identify the type of depositionBEFOREtaking it.The type of deposition dictates the proper scope of inquiry during the deposition & its utility at trial.Identification is required by Supreme Court Rules:Rule 202: deposition notices, orders or stipulations “shall specify whether the deposition is to be a discovery deposition or an evidence deposition.”Rule 206(a): deposition notices “shall state…whether the deposition is for purposes of discovery or for use in evidence.”Failure to comply will result in deposition being treated as discovery only.
SUPREME COURT RULE 212(a):Permissible Uses
Supreme Court Rule 212(a) authorizes the following five uses of discovery depositions at trial or hearing:To impeach the trial testimony of the deponent;As an admission by a party or an officer/agent of the party;As an exception to the hearsay rule;For any purpose for which an affidavit may be used;As evidence at trial – so long as several conditions are met & trial court makes certain findings.Ill. S. Ct. Rule 212(a)(West 2014).
This use has been characterized as “greatly abused” so it is important to understand that not every inconsistent statement at trial justifies impeachment with use of a discovery deposition.Only permissible IF:The trial testimony is “materially inconsistent” with the prior deposition testimony; andThe inconsistency is substantial, rather than merely trivial or collateral.Attorneys MUST be prepared to “prove up” the impeachment if the witness denies the prior statement or gives an equivocal answer. Considered error & potentially prejudicial not to do so.CAUTION:Impeachment is not substantive evidence so don’t allow your opponent to use it as such!
An admission from a discovery deposition is admitted assubstantive evidence, which may be conclusively binding!It doesnot need to be against a party’s interest or even contradict the party’s trial testimony. Instead, the admission merely needs to be relevant & material to a trial issue.No foundation is necessary prior to introducing the admission of a party or its agent. Don’t even need to question the witness about it prior to admission.Admissions can be eitherjudicial or evidentiaryin nature. You must understand the difference between them & their effect on the proofs at trial.
Judicial admissions are potentially more damaging because they are binding & cannot be withdrawn, whereas evidentiary admissions can be contradicted or explained.Judicial admissions must be carefully examined & must constitute “deliberate, clear, unequivocal statements by a party about a concrete factwithinthat party’s knowledge.”Inre Estate of Rennick, 181 Ill.2d 395, 406 (1998)Because judicial admissions must concern “concrete” facts, statements of opinion, estimates, appearances or uncertain summaries do not qualify.Smith v. Pavlovich, 394 Ill.App.3d 458, 468 (5thDist., 2008).The testimony of a nonparty witness cannot constitute a judicial admission, even if the witness is later named as a party.Waltrous v. Coulter, 2011 IL App (4th) 110071-U.
ADMISSIONSIdentity of the Deponent
Can dead men talk at trial? Yes. “Death does not erase an admission from a party’s lips…”In re Estate of Rennick, 181 Ill.2d 395, 405 (1998).Status as a party’s agent is governed by traditional agency principals. Relevant factors include manner of hiring, right to discharge, manner & direction of the work, right to terminate & supervision exerted over the work.Taylor v. Kohli, 162 Ill.2d 91, 95-96 (1994).The agent’s admission must concern a matter within the scope of his authority while the agency relationship exists. This simply means that the admission mustconcerna matter within the scope of employment.Calloway v. Bovis Lend Lease, Inc., 2013 IL App (1st) 112746.
ADMISSIONSAvailability of Deponent
Supreme Court Rule 212(a)(2) doesNOTrequire a showing that the deponent is unavailable at trial in order to use admissions from a discovery deposition.NOTE:This is in contrast to subsections (a)(5) & (b), but the argument that the unavailability provisions of those subsections should be applied to admissions under subsection (a)(2) has been rejected.Behrstock v. Ace Hose & Rubber Co., 147 Ill.App.3d 76, 86 (1stDist., 1986).
ADMISSIONSWhen All Else Fails:
Even if it a particular statement seems like an admission, don’t despair!If you are fully conversant with the entire deposition & its relationship to the other evidence, you may still be able to argue that the statement should beexcluded.HOW?The determination about whether a statement constitutes an admission requires that it be given a meaning consistent with the context in which it was made AND in relation to the other evidence.Dunning v. Dynegy Midwest Generation, Inc., 2015 IL App (5th).WHY?So that justice is not achieved “on the strength of a chance statement made by a nervous party.”Smith v.Pavlovich,394 Ill.App.3d 458, 468 (5thDist., 2008).
SUBSECTION (a)(3)Exceptions To Hearsay
Supreme Court Rule 212(a)(3) expressly allows use of a discovery deposition if it is “otherwise admissible as an exception to the hearsay rule.”NOTE:The prior prohibition against using a deceased party’s discovery deposition at trial, even if it qualified as a hearsay exception under subsection (a)(3), was lifted when subsection (a)(5) of the rule was amended in 2010.
SUBSECTION (a)(4)Same Use As Affidavit
Subsection (a)(4) allows a discovery deposition to be used “for any purpose for which an affidavit may be used.”The most common setting is summary judgment or section 2-619 motions.Must still comply with the requirements of Supreme Court Rule 191(a), which mandates that all evidentiary materials used in such motions consist of “facts admissible in evidence.”Pavlik v. Wal-Mart Stores, Inc., 323 Ill.App.3d 1060 (1stDist., 2001).Must also comply with rules governing depositions, such as Supreme Court Rule 207, which requires signature/waiver by deponent & filing with the court. Failure to do so may preclude the deposition’s use.Certified Mechanical Contractors, Inc. v. Wight Co., 162 Ill.App.3d 391, 402 (1stDist., 1987).
SUBSECTION (a)(5)Death or Infirmity
Subsection (a)(5) currently allows the use of a discovery deposition at trial if the deponent (other than a retained expert) is unable to testify due to death or infirmity – assuming that certain other requirements are met.This was not always true so attorneys should understand the history of this subsection.2001– Subsection (a)(5) was first added to Rule 212. Precluded use if deponent was retained expert OR a party.2008–Berry v. American Standard, Inc.was decided; SJ granted solely because plaintiff (who had given a discovery dep) died before his evidence deposition could be taken. In response, the Illinois Supreme Court Rules Committee decided to review & revise the rule.2011– Amendment to (a)(5) took effect on Jan. 1st.
Subsection (a)(5) currently allows for use of discovery depositions at trial, including those of deceased parties, under the following circumstances:Reasonable notice of the deposition was given to all parties;The party against whom it is offered appeared at the deposition or was given proper notice of it;The court finds that the deponent is not a “controlled” expert witness;The deponent’s evidence deposition was not taken;The deponent is unable to testify at trial due to death or infirmity;The court finds that substantial justice will be achieved by admitting the evidence at trial.
RULE 212(c):Partial Use
Supreme Court Rule 212(c) allows a party against whom a discovery deposition is being used to read, use or require the opposing party to read “any other part of the deposition which ought in fairness to be considered in connection with the part read or used.”The purpose is to prevent distortion or an unfair impression that may result from introducing only isolated statements from a discovery deposition.The trial court must conclude that the additional statements are necessary to explain or modify the statements originally introduced by the opposing party.This determination requires that each statement be examined individually. The failure to do so is considered error.
ELECTRONIC TRANSCRIPTS&VIDEOMs. Kathleen M. GroveGrove & Associates Reporting & Video Services1333 North Main StreetWheaton, IL 60187(630) 462-0060