No discovery deps allowed: a recent case underscores the importance of taking a party's evidence not discovery - deposition if he or she may die before trial

Illinois Bar Journal, August, 2008

The Illinois Appellate Court garnered some comment from practitioners in the blogosphere when it explained the difference between discovery and evidence depositions in a recent case, Berry v American Standard, Inc, 888 NE2d 740, 2008 WI 2132141 (5th D). Though all justices on the appellate panel joined in the result, two filed a separate concurrence in which they opined that "the justice system failed" as the result of a series of delays and rulings on motions at the trial court level, denying the plaintiff his day in court before his death from mesothelioma.

The facts

Illinois procedure permits two type of depositions: discovery or evidence. As Godfrey lawyer Evan Schaeffer wrote in an entry on his Illinois Trial Practice Weblog, counsel may use either at trial for impeachment. Absent certain exceptions, however, only the evidence deposition may be used substantively. SCR 206(a) requires a party taking a deposition to state in the notice whether the deposition is to be for evidence or discovery, and SCR 212 dictates how depositions may be used.

Howard L. Berry was diagnosed with terminal mesothelioma on September 23, 2003, and at that time was given between eight and 18 months to live. On January 2, 2004, Howard and his wife. Linnie Kathryn Berry, filed suit against 47 defendants, seeking damages as a result of Howard's exposure to asbestos on various job sites.

Less than three weeks later, the Ben rys' counsel served on all defendants o notice that Howard's evidence deposition would be taken on February 25. 2004. Objecting, the defendants requested that the evidence deposition take place only after Howard's discovery deposition, which then was scheduled for March 16, 2004, and extended by agreement to March 22, 2004.

With his lengthy employment his tort' and so many defendants wishing to question him, the court said, Howard's discovery deposition could not be completed by that time, and the parties did not agree to another extension. Therefore, in May 2004, the defendants moved to extend the discovery deposition, and, at a hearing on May 12, 2004, the court granted their request.

At that time, the court ordered that Howard's deposition might consume an additional four days and had to be completed within 30 days. His evidence deposition was to be taken within seven days of receipt of expedited transcripts of the completed discovery deposition.

But Howard's illness had sapped his stamina, and, according to his physicians, he could stand to testify only three hours a day, for a total of no more than seven hours-which had to include the evidence deposition. Accordingly, nine days after the court's order, Howard and his wife filed a motion for a protective order and/or an order limiting the time allotted for the continuation of the discovery deposition, scheduling it for May 28, 2004, and attaching to it an affidavit of Howard's physician.

The court denied the Berrys' motion. At the same hearing, the Berrys asked that the videotaped discovery deposition be used as an evidence deposition in the event of Howard's death. The defendants objected, and the court denied the request.

Howard's discovery deposition was reconvened on several different days. After the defendants successfully filed further motions for additional time in which to complete it, his discovery deposition was ultimately concluded on July 28, 2004. Not long after that, Howard was hospitalized, and on August 23, 2004, without his evidence deposition having been taken, he died.

Courts will accept no substitutes

The parties then filed cross motions to use or to bar the use of Howard's discovery deposition as evidence. Agreeing with the defendants' reliance on SCR 212(a)(5), which permits 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, the trial court found that the rule barred the use of Howard's discovery deposition as evidence. Howard was and, though deceased, remained a party to the action through his estate for purposes of the rule, reasoned the court.

The court then granted the defendants' motions for summary judgment on the basis that without Howard's testimony, his widow would be unable to prove her case. Linnie Berry appealed.

Agreeing with the trial court, the appellate court contrasted the purposes and procedures of discovery and evidence depositions in the state courts of Illinois. Because counsel know that the purpose of a discovery deposition is to explore a case's facts and that its admissibility at trial is limited, counsel ordinarily do not make time-consuming evidentiary objections as they would at evidence depositions, said the court.

Allowing the evidentiary use of Howard's discovery deposition "would effectively abrogate the provisions of Rule 212(a)(5). ... 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 * 4, 888 NE2d at 747.