Using a Dead Deponent’s Discovery Deposition at Trial

Illinois, unlike many states, uses two types of depositions. The discovery deposition, as its name suggests, is for the purposes of aiding in the discovery process and is a less rigid than a traditional deposition. The evidence deposition adheres to the rules of evidence and can be used in lieu of trial testimony should the deponent be unavailable. But what are practitioners to do if they have taken an evidence deposition but their deponent has subsequently died before an evidence deposition can be performed?

On January 1, 2012, an amended version of Illinois Supreme Court Rule 212(a)(5) went into effect to remedy this problem.  Under the current version of Rule 212(a)(5), a plaintiff’s discovery deposition can be used as evidence at trial under certain circumstances.  See Ill. Sup. Ct. R. 212(a)(5) (West 2012).  The Rule expressly states that this amended Rule 212(a)(5) applies only to cases filed on or after the effective date of January 1, 2011.  As outlined in the Committee Comments, “this amendment applies to case filed on or after the effective date (January 1, 2011), and only in “rare, but compelling circumstances” and “it is expected that the circumstances that would justify use of a discovery deposition would be extremely limited.””  See Ill. Sup. Ct. R. 212(a) Committee Comments (West 2012).

One major change to Rule 212 controls the purposes for which discovery depositions are used. It is important to delineate for the court when a case was filed in relation to the changes to Illinois Supreme Court Rule 212 which took effect July 1, 2011.

The amended Supreme Court Rule 212 holds as follows:

Purposes for Which Discovery Depositions May Be Used. Discovery depositions taken under the provisions of this rule may be used only:

Upon reasonable notice to all parties, as evidence at trial or hearing against a party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is neither a controlled expert witness nor a party, the deponent’s evidence deposition has not been taken, and the deponent is unable to testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties.
Ill. Sup. Ct. R. 212(a)(5) (West 2002)(emphasis added).

For cases filed prior to January 1, 2011, the Illinois Supreme Court Rules clearly prohibit the use of a deceased plaintiff’s discovery deposition as evidence at trial. See Longstreet v. Cottrell Inc., 374 Ill.App.3d 549, 312 Ill.Dec. 672 (5th Dist. 2007). “A deceased party/deponent remains a party to an action through the substituted representative of his estate so that [Supreme Court] Rule 212(a)(5) bars the use of a discovery deposition of the deceased party/deponent as evidence at trial.”  Berry v. American Standard Inc.382 Ill.App.3d 895, 901, 321 Ill.Dec. 221, 228 (5th Dist. 2008).  In Berry, the court barred use of plaintiff’s discovery deposition at trial as Supreme Court Rule 212(a)(5) affords the court no discretion in allowing use of a party’s discovery deposition as evidence at trial.  Id. at 902.  Without plaintiff’s discovery deposition, plaintiff was unable to prove his case and the trial court granted summary judgment.  Id. at 899.

Moreover, Rule 212 explicitly provides that a substitution of parties does not affect the right to use depositions previously taken. Ill. Sup. Ct. R. 212(d).  Where both a decedent and his estate as represented are parties to an action,  and the discovery deposition could not have been used as evidence prior to a substitution of the parties, the discovery deposition of the decedent is not admissible as evidence under Rule 212(a)(5).  Berry v. American Standard Inc.,382 Ill.App.3d 895, 321 Ill.Dec. 221 (5th Dist. 2008). A discovery deposition may not be used in place of live testimony upon the death of a party/deponent. Id.

Strict compliance with the Supreme Court Rules is required. Village of LakeVilla v. Stokovich211 Ill.2d 106, 116, 284 Ill.Dec. 260 (2004). Supreme Court rules are not mere suggestions but have the force of law. The presumption is that they will be obeyed and enforced as written. Bright v. Dicke166 Ill.2d 204, 201, 209 Ill.Dec 735 (1995).

This change to the rules dramatically changes how attorneys take and defend discovery depositions. No longer is a discovery deposition simply a vessel by which discovery of potential evidence is achieved. Now the discovery deposition can become evidence itself, increasing the importance of discovery depositions in every facet. It becomes vitally important for attorneys to be prepared for the worst and in turn be prepared to elicit the necessary testimony to win at trial. Discovery depositions are a valuable and fantastic opportunity to both develop your case and pin the deponent to their story permanently.

Netflix Downplays Court’s Net Neutrality Decision, Says Internet Providers Unlikely To Act

Originally posted on TechCrunch:

In the letter to shareholders that accompanied today’s earnings report, Netflix addresses the recent circuit court decision that was seen as a threat to net neutrality.

That decision could potentially be a problem for Netflix, because it could provide legal justification for Internet providers to reduce the speed at which Netflix video content is delivered unless the company pays the providers. As the letter (which specifically calls out Verizon for challenging net neutrality in court) puts it: “In principle, a domestic ISP now can legally impede the video streams that members request from Netflix, degrading the experience we jointly provide. The motivation could be to get Netflix to pay fees to stop this degradation.”

If that happens, Netflix says it would “vigorously protest,” but the company suggests that things probably won’t go that far. The letter, which is signed by CEO Reed Hastings (pictured) and CFO David Wells, argues…

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Tax Preparation Infographic: What to Save and What to Shred.

Tax Preparation Infographic: What to Save and What to Shred.

The DEA Created Chicago’s Drug Problem

The drug problem in Chicago, and the violence that accompanies it, is a pandemic. It infects the city and surrounding areas. Local officials have been searching for ways to bring down the crime rate and stem the flow of drugs into the city for years. Yesterday the Drug Enforcement Agency announced it would be working with local news outlet ABC7 to raise awareness of who the major players in the drug game are. They announced:

The ABC7 I-Team is kicking off “Operation Outlaws,” an exclusive arrangement with the U.S. Drug Enforcement Administration to track down some of Chicago’s top fugitives.

The I-Team is on the trail of outlaws. Most of Chicago’s biggest fugitives are wanted for drug crimes and the violent mayhem that goes along with them– and some have been on the lam for years. On Monday night, the I-Team investigated one of the oldest cases, and one of the newest.

While this is not a novel idea, it is one that could be effective, if it weren’t already being undermined. Court documents released yesterday revealed the DEA has been working in conjunction with Chicago’s primary supplier of drugs, allowing him and his cartel to traffic drugs freely in exchange for information.

Business Insider has the full story:

An investigation by El Universal found that between the years 2000 and 2012, the U.S. government had an arrangement with Mexico’s Sinaloa drug cartel that allowed the organization to smuggle billions of dollars of drugs while Sinaloa provided information on rival cartels.

Sinaloa, led by Joaquin “El Chapo” Guzman, supplies 80% of the drugs entering the Chicago area and has a presence in cities across the U.S.

There have long been allegations that Guzman, considered to be “the world’s most powerful drug trafficker,” coordinates with American authorities.

But the El Universal investigation is the first to publish court documents that include corroborating testimony from a DEA agent and a Justice Department official.

The written statements were made to the U.S. District Court in Chicago in relation to the arrest of Jesus Vicente Zambada-Niebla, the son of Sinaloa leader Ismael “El Mayo” Zambada and allegedly the Sinaloa cartel’s “logistics coordinator.”

Here’s what DEA agent Manuel Castanon told the Chicago court:

“On March 17, 2009, I met for approximately 30 minutes in a hotel room in Mexico City with Vincente Zambada-Niebla and two other individuals — DEA agent David Herrod and a cooperating source [Sinaloa lawyer Loya Castro] with whom I had worked since 2005. … I did all of the talking on behalf of [the] DEA.”

It appears that the DEA has been a primary contributor to the violence in Chicago. By allowing Sinola to freely traffic drugs, in exchange for information, a culture of violence was created. Ironically, the drug cartels that the DEA were hunting, consolidated after 2012. There are no documents to confirm whether the DEA is still receiving cooperation from the cartels. Thus continues the absurdities of the drug war.
Read more: http://www.businessinsider.com/the-us-government-and-the-sinaloa-cartel-2014-1#ixzz2qNu2QtyH

The Importance of Networking: A Primer

Business gets done on the back of your connections. You may be the smartest person in the room (if you are in fact the smartest person in the room, you’re probably in the wrong room) but that may not make you the most successful person in the room. In order to get ahead, you need to know how to network. This concept, however, is frightening to many.

The ability to start a conversation with a complete stranger is one that takes work. Some may be born with this ability to politick, but for others it must be learned. This is an essential skill that will get you ahead of the eight-ball and further in your career than any book or class ever will. The power of connecting with people is one of the most important skills you can learn as a young professional. So how do you get started? Keith Lee at AssociatesMind gives a great primer on networking and how to improve your ability to make connections.

First, identify someone who seems approachable. Someone by themselves or just a couple of people. Make eye contact, and confidently go and introduce yourself. Most people can do this part, but flounder at what comes next. Dr. Carol Flemming, a communications consultant, has a small talk strategy that almost anyone can follow and utilize, call the ARE Technique – anchor, reveal, encourage.

Anchor

An anchor is simply a shared observation. Either something related to the event you are at, or a topic that is on hand. Even the dreaded “weather option.” Don’t worry stressing over finding something incredibly interesting to say. Almost everyone realizes that these initial forays are simply the polite and necessary first steps required before you move into substantial conversation.

“They really laid out the red carpet for this years party.”

Reveal

The reveal is merely sharing something about yourself, that is related to the anchor. By offering up something about yourself, you are extending yourself out to the other person and providing them with something to respond to.

“There is a much larger crowd than there was when I attended the party last year.”

Encourage

Time to get the other person involved. Ask questions related to your reveal that seek to find out if the other person has some connection to your reveal. These questions usually start off with something like:

  • Tell me about…
  • Have you ever…
  • What brought you to…
  • How do you know…
  • When did you…
  • Why…

“Is this your first time coming to the party?”

At this point you should be able to push the conversation along, either continuing to use the ARE technique, or segueing into a more in-depth conversation.

  • “It’s your first time? How did you hear about it/who invited you?”
  • “You were here last year as well? I’m surprised we didn’t bump into each other. Did you see/Do you know…?”

It’s a very simple technique that almost everyone should be able to use immediately. It might still be a bit awkward at first, but like everything else, you’ll get better with practice. Give it a try at the next holiday party you attend and see if you aren’t able to put your small talk anxiety to rest.

Make sure that you have business cards ready to hand out to your new connection, but most importantly make sure that you get their card. Once you have their contact information, make sure to follow up with the new contact. Send them an email, connect with them on LinkedIn and take an interest in what they do and who they are. Get together for lunch or coffee, send them an interesting article you read or information about an event you think they might enjoy. Networking is about building connections with people, not just getting contact information so you can use people. Make sure you are making the extra effort to build lasting connections with people.

You can read this and many more articles about how to get ahead as a young professional at Associatesmind.com

Privacy’s Postmortem: Smith v. Maryland And How A Pen Register Became A Threat To Freedom

johnrisvold:

History tends to repeat itself.

Originally posted on JONATHAN TURLEY:

By Mark Esposito, Guest Blogger

bigbroWhen the faceless analyzers locked deep inside the NSA finally get around to divining just how privacy died in this country they won’t start with Friday’s decision by Judge William Pauley, III  in  ACLU v. Clapper finding the NSA data mining of American’s communications perfectly constitutional or even go back to the horrible events of September 11, 2001 when fear ran freedom from the playing field. No, the truth is that privacy began to die farther back in an obscure case during the nation’s bicentennial year. As most of us were gathering up our red, white, and blue bunting, buying fireworks, and marveling at the first technological salvo of the commercial computer age known as The Cray-1 , a robbery case in Maryland would form the first cancerous cell in the assault on the body politic’s right to be left free from government snooping.

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Employers can still fire Colorado pot smokers for legal use

As recreational cannabis sales begin Jan. 1 in Colorado, one fact is sometimes overlooked: Employers still can fire workers for using it on- or off-duty.

State law gives employers full authority to impose any drug prohibitions they wish, despite it being legal in Colorado for adults to possess and consume marijuana.

“Employers hold all the cards,” said Curtis Graves, a staff attorney for the Mountain States Employers Council.

So you smoke only off-duty? Not good enough. Consuming just at home provides no protection if your workplace drug test comes back positive for marijuana.

Many employees may be enjoying a false sense of security stemming from passage last year of Amendment 64, which legalized marijuana possession for adults in Colorado.

“Right now there is a great deal of confusion,” said attorney Danielle Urban of labor-law firm Fisher & Phillips in Denver. “People are surprised to learn that they can lose their jobs.”

Amid the euphoria of approving legal pot, some cannabis enthusiasts may have overlooked a key piece of fine print in Amendment 64.

via Employers can still fire Colorado pot smokers for legal use – The Denver Post.

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