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.


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