Discover Depositions

Transcription

1 FEATURE ARTICLE Discover Depositions Making the Case for the Discovery Deposition By: Peter W. Brandt & Heather K. Lloyd Livingston, Barger, Brandt & Schroeder, Bloomington Introduction The Committee on Discovery Procedures of the Illinois Judicial Conference has before it a proposal to amend Illinois Supreme Court Rule 212(a) which will enable a party to use a discovery deposition as an evidence deposition upon a showing of an inability to procure a deponent s attendance at trial. On June 11, 1999, the Committee held a hearing in which it invited Representatives of the Illinois Association of Defense Trial Counsel, Illinois Trial Lawyers Association, Illinois State Bar Association, and Chicago Bar Association, among others to attend. One of the authors, Peter Brandt, attended on behalf of the IDC. Timothy Bertschy, an IDC member and then President of the Illinois State Bar Association, was also in attendance. In what can be described as unusual harmony, the Illinois State Bar Association, the Illinois Trial Lawyers Association and the IDC were all in agreement that the proposed amendment to Illinois Supreme Court Rule 212(a) which, in essence, made every discovery deposition a potential evidence deposition, was a proposal for which no group had any enthusiasm. At the Committee s hearing on June 11, 1999, the author was asked to prepare and publish an article which included a history of discovery depositions in Illinois as well as the reasons why the proposed amendment was objectionable. This article at least touches on the issues the Committee asked the authors to address. 1 I. Proposed Change to Rule 212 Below is the existing Rule and the proposed amendment to Rule 212(a). Existing Rule 212(a) Rule 212. Use of Depositions a. Purpose for Which Discovery Depositions May be Used. Discovery depositions taken under the provision of this Rule may be used only: (1) for the purpose of impeaching the testimony of the deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness; (2) as an admission made by a party or by an officer or agent of a party in the same manner and to the same extent as any other admission made by that person; (3) if otherwise admissible as an exception to the hearsay rule; or (4) for any purpose for which an affidavit may be used. Proposed Amendment to Rule 212(a)

2 Add (5) (5) at trial, if the Court finds that the deponent is unable to be present because of death or thenexisting physical or mental illness of infirmity; or the party offering the deposition has been unable to procure the deponent s attendance at trial (unless the absence of the witness is due to the procurement or wrongdoing of the party offering the deposition). Inability to procure the deponent s attendance includes a showing that the deponent s residence is outside the State of Illinois. Noting in this subsection shall be construed as affecting the utilization of evidence depositions as provided in Rule 212(b). II. History of Discovery Depositions The Illinois Civil Practice Act of 1933 provided for discovery by deposition prior to trial for the first time. George Ragland, Discovery by Deposition, 1950 LAW FORUM 161 (1950). Prior to the enactment of the Civil Practice Act, depositions were taken only for evidence. Peter Fitzpatrick and James M. Goff, Discovery and Depositions., 50 NW. U. L. REV. 628 (1955). In 1956, the Revised Civil Practice Act provided that all discovery should be in accordance with Supreme Court Rules. Jack Watson, The Settlement Theory of Discovery, 55 ILL. B.J. 480, 481 (1967). Discovery was expanded because courts desired to make trials more equitable by making the truth easier to ascertain. Id. In 1963, the Illinois Supreme Court Rules Committee was appointed by the Supreme Court to make revisions to its rules. The Supreme Court Rules Committee proposed that discovery depositions be used in trials as evidence under certain circumstances. Philip W. Tone, Comments on the New Illinois Supreme Court Rules, 48 CHI. B. REC. 46, 49 (1967). The proposal was eventually withdrawn after the Committee was persuaded that the distinction between discovery and evidence depositions should be preserved, and the distinction has been preserved ever since. Id at 50. Unlike the Federal Rules of Civil Procedure, the Illinois Supreme Court Rules differentiate between discovery and evidence depositions. Robert G. Johnston, Discovery in Illinois and Federal Courts, 15 J. MARSHALL L. REV. 1, 38 (1982). Members of the Joint Committee appointed to revise the Illinois Civil Practice Act in 1955 found several disadvantages associated with the dual-purpose evidence and discovery deposition. Albert Jenner, Jr. Discovery and Depositions under 1955 Amendments to Civil Practice Act, 44 ILL. B.J. 386, 393 (1956). The Committee found that the practice of combining evidence and discovery depositions impairs and restricts discovery, encourages objections and motions and other disruptions of orderly procedure, and affords a means of entrapment of the unwary and inexperienced. Id. A major reason behind upholding the distinction is that if parties know a deposition is for discovery purposes and limited in use at the trial, objections will be drastically reduced and examination of the witness will be facilitated. Id. Despite numerous revisions made to Illinois Civil Procedure Rules, the distinction between discovery and evidence depositions has remained because the distinction is seen as vital in protecting the scope of discovery. The range of questioning in a discovery deposition is broader, and the rules of evidence are more relaxed than they are for an evidence deposition since the purpose of discovery depositions is mainly investigatory. Robert G. Johnston, Discovery in Illinois and Federal Courts, 15 J. MARSHALL L. REV. 1, 38 (1982). The scope of examination is more liberal in a discovery deposition because the deponent may be questioned regarding anything relating to the merits of the matter in litigation. Peter Fitzpatrick and James M. Goff, Discovery and Depositions., 50 NW. U. L. REV. 628, 633 (1955). In fact, the Illinois Bar Association has voiced opposition to having a dual purpose deposition. In past years, it has opposed this change because having only one type of deposition will restrict discovery since the lawyer taking a deposition will not know whether it might ultimately be used as evidence. Philip W. Tone, Comments on the New Illinois Supreme Court Rules, 48 CHI. B. REC. 46, 49 (1967).

3 The ultimate purpose of discovery depositions, along with other discovery devices, is to end controversies as quickly and fairly as possible to both parties. De Witte Tente, Discovery Depositions., 1959 LAW FORUM 695, 697 (1959). The role of discovery is designed to: (1) Provide an adequate means of investigation in order to obtain facts otherwise unavailable and to avoid surprise and perjury; (2) narrow the issues in order to expedite and reduce the cost of litigation; (3) record and preserve facts; and (4) encourage settlements. Robert G. Johnston, Discovery in Illinois and Federal Courts, 15 J. MARSHALL L. REV. 1, 3 (1982). The discovery deposition was designed to advance the stage at which disclosure can be compelled from the time of trial to the period preceding it, so that the possibility of surprise will be reduced. De Witte Tente, Discovery Depositions., 1959 LAW FORUM 695, 697 (1959). The discovery deposition is the most efficient device for investigating the facts and preserving the evidence. Robert G. Johnston, Discovery in Illinois and Federal Courts, 15 J. MARSHALL L. REV. 1, 37 (1982). Discovery depositions may be used in preparation for trial for informational purposes to lead to evidence that may be admissible at the trial. De Witte Tente, Discovery Depositions., 1959 LAW FORUM 695, 723 (1959). It is also a valuable source of factual information that can be used when cross-examining a witness. Id. The most important purpose of a discovery deposition is to ascertain and pin down the witness to a definite story early, and to use it at the trial to impeach or to refresh the memory of the witness. George Ragland, Jr. Discovery by Deposition, 1950 LAW FORUM 161,171 (1950). Not distinguishing between evidence and discovery depositions impairs and restricts discovery because attorneys would be prone to make the same objections and motions at every deposition that they would ordinarily only make at an evidence deposition. Peter Fitzpatrick and James M. Goff, Discovery and Depositions., 50 NW. U. L. REV. 628, 633 (1955). If a deposition cannot be used in evidence, the lawyer taking it will be much less inhibited in the quest for information than he or she would be if the deposition could be used as evidence. Philip W. Tone, Comments on the New Illinois Supreme Court Rules, 48 CHI. B. REC. 46, 49 (1967). When a deposition can be used as evidence, lawyers will be reluctant to ask questions to which the lawyer does not know the answer, and therefore, the purpose of discovery will be greatly hindered. Id. A lawyer risks adducing evidence helpful to his adversary if he is not guarded in the examination. Id. Other problems arise if there is no distinction between discovery and evidence depositions. If there is a chance the witness will not be available at the trial, the lawyer is taking a risk, unless during the deposition he or she lays the necessary foundation for any impeaching evidence available. Philip W. Tone, Comments on the New Illinois Supreme Court Rules, 48 CHI. B. REC. 46, 50 (1967). On the other hand, doing so would tip-off a dishonest witness or adversary and seriously undermine the value of the impeaching evidence if the witness does testify at trial. Id. Problems arise when a dual-purpose discovery-evidence deposition is offered into evidence because it is difficult to protect the party against whom it is offered in the same way live witnesses are protected in the courtroom. Id. Leading and suggestive questions and cross-examination of the party s own witness are usually tolerated when the deposition is offered at the trial. Id. At an American Bar Association session, Illinois lawyers debated about whether Illinois courts should abolish the distinction between evidence and discovery depositions and place limits on discovery practices in general in Donna Gill, Limits on Depositions, Discovery Debated, CHIC. DAILY L. BULL., August 3, v. 136 n. 152 at 1. Michael Reiter, Chair of the Litigation Department at Holleb & Coff explained that eliminating the distinction would add to the time it takes to decide cases. Id at 20. He stated that cases are often settled prior to trial due to information obtained in discovery, but this would not happen if discovery practices, such as discovery depositions, were limited or eliminated altogether. Id at 20. A discovery practice simple in procedures, broad in the scope of inquiry, and mutually available to both parties is necessary if the trial is to be a reasonably sure method of obtaining justice, rather than a proceeding by which one party may gain or confirm an accidental advantage over another. Peter Fitzpatrick and James M. Goff, Discovery and Depositions., 50 NW. U. L. REV. 628, 638 (1955). Discovery depositions do all of these things. Mr. De Witte Tente announced in 1959: Our discovery procedure, including discovery depositions, has proved its worth through twenty-six years of experience. De Witte Tente, Discovery Depositions, 1959 LAW FORUM 695, 732 (1959). In 1999, our discovery procedure, including discovery depositions, has

4 proved its worth through sixty-six years of experience and will continue to be worthwhile for many years to come. III. Problems with Proposed Amendment to Illinois Supreme Court Rule 212(a) in Personal Injury Cases The problem with the proposed amendment to Rule 212(a), which would add paragraph (5) set forth above, is that it makes every deposition a potential evidence deposition. As a result, this amendment places a defendant in a personal injury case at a distinct disadvantage in preparing the medical aspects of the case for trial by depriving defense counsel of the most effective means of determining the substance of the medical witness testimony in advance of trial. In essence, since every discovery deposition is an evidence deposition, plaintiff s counsel has a distinct advantage. The disadvantage for defense counsel is further aggravated by the Petrillo 2 rule which prohibits ex parte interviews of health care providers. Plaintiff s counsel will have the advantage of meeting with the physician prior to the deposition, and through cross-examination, use the deposition to preserve the witness testimony for trial, thus depriving the defense counsel of his or her only opportunity to evaluate the witness testimony and prepare for cross-examination in advance of the testimony being preserved for trial. Plaintiff s counsel would have several reasons for preserving a treating physician s trial testimony in a deposition noticed by defense counsel for discovery purposes rather than calling the witness at trial or noticing a separate deposition. These include not having to pay the witness professional fee, gaining the advantage of developing the witness testimony by leading questions, and forcing defense counsel to cross-examine the witness without the benefit of advanced preparation through a discovery deposition. Faced with the prospect of plaintiff s counsel developing the witness trial testimony and crossexamination, defense counsel may choose not to depose the physician in advance of trial. If the evil to be addressed by the proposed amendment is last minute depositions, which can cause continuances of trial, and if defense counsel chooses not to depose a physician in advance of trial, the courts can expect a greater number of delays as plaintiff s counsel attempts, at the eleventh hour, to schedule the deposition of a doctor who is either unavailable for trial or uncooperative. A dilemma faced by both plaintiffs and defendants is that treating physicians resist having to appear at trial. Often physicians propose to the litigants that a deposition be taken instead of live testimony. This is due, in part, to the treating physician s need to provide care to his patients, but it is also due to the unwillingness or inability of many physicians to juggle their schedules and make other accommodations required for live courtroom testimony. Brown and Kidwell, Righting the Wrong of Woytus: A Proposal for Adoption of a Rule in Missouri Creating a New Category of Depositions Which May Be Used for Discovery Purposes Only. 56 Missouri Law Review, (1991). Since the Petrillo rule prevents defense counsel from having equal access to plaintiff s treating physicians, the proposed amendment to Illinois Supreme Court Rule 212(a) lays further obstacles to complete discovery at the feet of the defendant. Counsel for plaintiff, whose ability to conduct ex parte interviews of his or her client s treating physicians, continues to be able to conduct informal discovery of medical witnesses and to make informed decision on these matters further eroding the rights of defendants. And, there is nothing to prevent plaintiff s counsel from preserving the testimony of the plaintiff s treating physician in a deposition noticed by defense counsel for purposes of discovering the physician s anticipated trial testimony. Defense counsel may not be able to protect his or her client from a blind-siding by objecting to plaintiff s comprehensive cross-examination of the witness on the grounds that the testimony exceeds the proper scope of cross-examination. The proposed amendment to Illinois Supreme Court Rule 212(a) would lengthen all discovery depositions since objections must be preserved on the record. This will only enure to the benefit of the plaintiff since defense counsel likely pays for the physician s time and for the original deposition transcript. Even when the health care provider s deposition is noticed by plaintiff s counsel, defense counsel is at a distinct disadvantage if he or she must prepare for cross-examination of the plaintiff s treating physician

5 without having first interviewed or deposed the witness, particularly since plaintiff s counsel can, and usually will, schedule an ex parte interview of the physician prior to the deposition. A suggested option of a joint interview of the witness, with the agreement of plaintiff s counsel, does not correct these fairness concerns. Few plaintiff s counsel will agree to a joint interview. It could be argued that an attorney representing a personal injury plaintiff who willingly consents to a joint interview, when he or she can interview the physician ex parte and shut out defense counsel, is not vigorously representing the client s interests. Current practice involves not only evidence depositions taken subsequent to a discovery deposition. Often a video deposition is taken for presentation at trial. Under the proposed amendment to Illinois Supreme Court Rule 212, it would be incumbent upon counsel to make a determination at the time of the discovery deposition whether the added expense of a videotaped deposition is worth incurring based upon a reading of the medical records alone. Typically, medical records do not contain the opinions of the type elicited on deposition. Further, handwritten medical records are often difficult to read, compounding the problem. In summary, plaintiff s counsel has several reasons for preserving a treating physician s trial testimony in a discovery deposition noticed by defense counsel for discovery purposes rather than calling a witness at trial or noticing a separate evidence deposition. These include: 1. Not having to pay the witness professional fee; 2. Gaining the advantage of developing the witness testimony by leading questions; 3 Forcing defense counsel to cross-examine the witness without the benefit of advanced preparation. Depriving defendants of the right to prepare cross-examination undermines the foundation of the civil practice rules which have as goals fairness and truth. Under the proposed amendment, defense counsel s crossexamination of any witness will likely be less effective than if plaintiff waited and took an evidence deposition or called the witness at trial. Defense counsel s handwritten notes, if any, from direct examination of the physician are likely sketchy and lack the logical progression to be used effectively to cross-examine the witness. Defense counsel will have no opportunity to organize notes to prepare an effective and concise crossexamination of the weakest links in the physician s opinions and testimony. Defense counsel will not have the opportunity to consult with experts or to review authoritative treatises to identify weaknesses or inconsistencies in the physician s testimony. Defense counsel will not have had the opportunity to have tests performed to challenge the assumptions, studies or tests upon which the physician s testimony is based. See generally, Brown and Kidwell, Righting the Wrong of Woytus: A Proposal for Adoption of a Rule in Missouri Creating a New Category of Depositions Which May Be Used for Discovery Purposes Only. 56 Missouri Law Review; (1991). IV. Discovery Depositions Resolve Cases Several states besides Illinois allow discovery depositions. 3 Not only do Supreme Court Rules and the rules of other states permitting discovery depositions enable defense counsel to evaluate the testimony of plaintiff s treating physicians in advance of trial and determine whether or not to call them to testify, but the discovery deposition process is a cost-effective manner by which to evaluate the claim and move the matter to early resolution if appropriate. The proposition that every discovery deposition becomes an evidence deposition will foreclose the free-flow of inquiry by defense counsel, concerned that the testimony will be used against the client at trial. Brown and Kidwell, Righting the Wrong of Woytus: A Proposal for Adoption of a Rule in Missouri Creating a New Category of Depositions Which May Be Used for Discovery Purposes Only. 56 Missouri Law Review; (1991). The proposed amendment to Illinois Supreme Court Rule 212 will encourage trials without the existing discovery deposition process which allows the parties to fully discover all facts and opinions prior to trial.

6 Turning all discovery depositions into evidence depositions will encourage parties to withhold questions, answers to which are unknown and which may be harmful if the matter moves to trial. For years, the Illinois Supreme Court has underscored the proposition that discovery should be undertaken to the fullest extent. 4 The proposed amendment will have the opposite effect of restricting discovery. The discovery deposition greatly facilitates discovery for all sides and makes the development and presentation of evidence much simpler and effective. The proposal to amend Supreme Court Rule 212(a) will lead to surprise, delays and expense. This will place unworthy cases before juries, further clogging court dockets and inefficient and ineffective presentation of cases at trial. 5 If every discovery deposition is potentially an evidence deposition, clients will insist that trial counsel attend every deposition on the chance the deposition will be used in court, substantially increasing the expense of litigation. Rules of evidence would apply each time. The technique of asking questions would change dramatically. Every deposition would have to be reviewed by the Court and rulings made on the objections. Federal court depositions, which are evidentiary in nature, almost without exception, are much more time consuming than state court discovery depositions because objections must be made and questions rephrased to meet the objections. Instead of taking minutes to hours, pre-trial conferences will extend to days while the court rules on objections made during discovery depositions. This will significantly increase the workload of the court system. If the purpose for the amendment is to avoid delays and move cases to trial due to the unavailability of witnesses, this proposal is hardly an effective way to reduce the workload of the court. Endnotes 1 Doug Pomatto, the President of the IDC, solicited comments from the IDC membership on June 1, In response, he received over seventy-five responses at the time discussions began, including facsimile transmissions and letters from IDC members. With few exceptions, the overwhelming majority of the responses were negative about the proposed change to Supreme Court Rule Petrillo v. Syntex, 148 Ill. App. 3d 581, 499 N.E.2d 952 (1986) 3 California, Calif. Code Civ. P. 2025(d)(6), (i)(3); Maryland, M. Code Civ. P (b); New Jersey, N.J.R. Civ. P. 14-9; Oregon, Or. R. Civ. P. 39(I); Rhode Island, R.I. R. Civ. P. 26(d)(3), 30(b)(2); and Tennessee, Tenn. R. Civ. P (4), 32.01(3). 4 Monier v. Chamberlain, 35 Ill. 2d 351, 221 N.E.2d 410 (1966). 5 More than thirty years ago, Illinois Supreme Court Justice Underwood underscored the Supreme Court s philosophy about discovery when he declared: Discovery is a two-edged sword and may well serve to disclose the plaintiff s weakness as well as the defendant s. And let us always remember that the fundamental purpose of a lawsuit is to determine the truth of the matter. If the plaintiff is a lying, malingering scoundrel, he should be exposed; and if the defendant was actually negligent or his product defective, and the plaintiff thereby injured, he should be compensated. Modern day litigation is increasing both in volume and complexity. There are areas of this state in which substantial delay is encountered in the trial of cases. If the judicial system is to adequately meet the demands upon it, procedures which expedite the settlement or trial of cases ought to be intelligently utilized. Discovery procedures, if properly employed, ought to facilitate settlements by enabling the parties to more accurately estimate the strengths and weaknesses of their positions. Should such cases still proceed to trial, the additional knowledge afforded by adequate pretrial discovery should expedite the trial. In short, let me say that the basic purpose of discovery procedures is to assist the court and counsel in ascertaining the truth, and as indicated in the Civil Practice Act, to expeditiously and finally determine controversies in accordance with the substantive rights of the parties. This is the

7 responsibility of judges and lawyers. Chicago Daily Law Bulletin, Vol. 112, No. 209 (October 26, 1966). ABOUT THE AUTHORS: Peter W. Brandt is the President-Elect of the Illinois Association of Defense Trial Counsel. Heather K. Lloyd is a second year law student at Northern Illinois University.