Saturday, May 31, 2008

Are out-of-state witnesses always "unavailable to testify"?

The 2nd District recently affirmed a decision by an Ogle County trial court to award court reporter and videographer fees to plaintiff after trial that were incurred in taking the evidence deposition of a treating physician.

At issue in this case were the conflicting rules contained in Supreme Court Rule 208, which provides that "the party at whose instance the deposition is taken shall pay the charges of the recorder or stenographer," and the common law rule that if a deposition is "necessarily used at trial," those costs enumerated in Rule 208 may be taxed at the trial court's discretion."

The Supreme Court has previously held that a deposition is necessarily used at only when it is releveant and material and when the deponent's testimony cannont be procured at trial as, for example, if the deponent has died, had disappeared before trial, or is otherwise unavailable to testify. Vicencio v. Lincoln-Way Builders, Inc., 204 Ill.2d 295 (2003).

So, the issue was whether the physician was unavailable to testify just because he resided outside of the trial court's subpeona power. The court held that those witnesses outside of the court's subpoena power are unavailable to testify.

The court never even mentioned trying to obtain the doctor's voluntary appearance. I guess common sense just dictates that doctors are not going to take any time off of work to help out their patients unless they are threatened with the court's contempt powers.

The case is Peltier v. Collins, citation not yet available. Click here for a PDF file of the case.

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