January 2011Volume 99Number 1Page 10

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Berry and discovery depositions: hard cases make new rules

The Illinois Supreme Court amends Rule 212 by expanding the permissible uses of discovery depositions to cases where the deponent is a party and has died before trial.

As ISBA's Christopher Bonjean reported in July in Illinois Lawyer Now, ISBA's continually updated blog, the Committee on Discovery Procedures of the Illinois Judicial Conference examined Rule 212, which governs the use of depositions, after the Illinois appellate court issued Berry v American Standard, Inc, 382 Ill App 3d 895, 888 NE2d 740 (5th D 2008).

In that case, the plaintiff, Howard Berry, a mesothelioma victim who had been exposed to asbestos on various job sites, died before trial. Though his counsel moved to take his evidence deposition the month after filing suit, on the defendants' objections, it was postponed until after his discovery deposition.

That deposition was completed five months later, by which time Berry's illness had rapidly and substantially weakened him, affecting his ability to testify. He was hospitalized and died less than a month later, without his evidence deposition having been taken.

"The justice system failed"

At that time, SCR 212(a)(5) permitted the use of discovery depositions as evidence at trial where the deponent is unavailable because of infirmity or death except where the deponent is a party or an expert witness. Based on the rule's clear language, the trial court barred Berry's discovery deposition from use at trial. Without his testimony, Berry's estate could not prove his case, and the court accordingly granted summary judgment to the defendants.

Upholding the trial court's decision, the appellate court contrasted the purposes and procedures of discovery and evidence depositions. During discovery depositions, counsel ordinarily do not object as they would at evidence depositions, the court said, because they know that the purpose of a discovery deposition is to explore a case's facts and that the deposition's admissibility at trial is limited.

Were it to have allowed Berry's estate to use his discovery deposition at trial, the court said, it would have effectively abrogated the rule's language. "A different construction would turn every discovery deposition of a party into an evidence deposition because the parties would know that, in the event of the party/deponent's death, the deposition might be admissible as evidence at the trial." Id at 901, 888 NE2d at 747.

Two members of the appellate court panel filed a concurring opinion. Though they agreed that it would have been legally incorrect for the court to have permitted the use of Berry's discovery deposition at trial, they also said "the justice system failed….Through a series of motion-related delays and rulings of the trial court, Mr. Berry was denied his 'day in court.'" Id at 906, 888 NE2d at 751.

"[R]are, but compelling, circumstances"

As amended, the rule gives broad discretion to the trial court to permit the use of any discovery deposition, unless the deponent is a controlled expert witness, as evidence at trial or a hearing against a party who appeared at the deposition or was given proper notice of it, as long as two conditions are met: the deponent is unable to attend or testify at the trial or hearing because of death or infirmity, and the deponent's evidence deposition has not been taken. The rule requires the trial court to find only that permitting the use of the discovery deposition as evidence will do substantial justice between or among the parties.

The committee acknowledged Berry's impact on the rule in its explanatory note, published with the amended rule.

The Committee believes that a trial court should have the discretion under subparagraph (a)(5) to permit the use of a party's discovery deposition at trial. It appears that there may be rare, but compelling, circumstances under which a party's discovery deposition should be permitted to be used. In the Committee's view, Berry presents such circumstances. Given that in most cases counsel will have the opportunity to preserve a party's testimony via an evidence deposition, it is expected that the circumstances that would justify use of a discovery deposition would be extremely limited.

The amendment applies to all cases filed on or after January 1, 2011, its effective date. For the latest news you can use in your law practice, point your browsers to illinoislawyernow.com.

Helen W. Gunnarsson is a lawyer and writer in Highland Park. She can be reached at <helengunnar@gmail.com>.

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