Wednesday, June 11, 2008

Discovery deposition of deceased plaintiff excluded from trial

The Illinois Trial Pracice Weblog has a great summary of a recent 5th District case which outlines the limited areas in which a discovery deposition transcript can be used as substantive evidence at trial.

To summarize briefly, the plaintiff in Berry v. American Standard, Inc. passed away before trial and before his evidence deposition was taken. He had been deposed in a discovery deposition however. The trial court barred the use of the discovery depostion at trial because "Supreme Court Rule 212(a)(5) bars that use where the deponent is a party to the action."

In affirming the trial court, the appellate court noted that none of the exceptions in Rule 212(a) applied (impeachment, admission, as an exception to the hearsay rule, for purposes for which affidavits may be used, or as former testimony if not by a party). The court also noted the purpose of the rule: "knowing in advance that a deposition is for discovery only and hence of limited availability, counsel ordinarily do not urge technical objections, and the taking of the deposition proceeds informally and expeditiously."

Please click here to read the original post from the Illinois Trial Practice Weblog.

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