Death and Discovery Deps.

I recently began practicing in Chicago (took the bar this past July). During my first week of practice I found something amazing. If you filed a case in Illinois before 2011, and a party is deposed in a discovery deposition, and then that party dies, their deposition testimony is not admissible as evidence.

The Illinois Supreme Court Rules clearly prohibit the use of a Deceased-Plaintiff’s discovery deposition as evidence at trial. Longstreet v. Cottrell Inc., 374 Ill. App. 3d 549 (5^th Dist 2007).  “A deceased party/deponent remains a party to an action through the substituted representative of his estate so that [Supreme Court] Rule 212(a)(5) bars the use of a discovery deposition of the deceased party/deponent as evidence at trial.” Berry v. American Standard Inc., 382 Ill. App. 3d 895, 888 N.E.2d 740 (Ill. App. (5th Dist.) May 19, 2008).  The rules state that discovery depositions may be used only if the court finds that the deponent is not a party and is deceased or infirm. Il Sup. Ct. Rule 212(a).  

The Rule allows only the discovery depositions of non-parties or non-controlled witnesses to be admitted upon reasonable notice of the unavailability of the deponent due to death or infirmity and if the court finds that admission will do substantial justice between or among the parties. Il. Sup. Ct. Rule 212(a)(5).The exceptions to Rule 212 do not apply if the deceased is a party to the action. Id.   Moreover, Rule 212 explicitly provides that a substitution of parties does not affect the right to use depositions previously taken. 212(d). “Where both a decedent and his estate as represented are parties to an action,  and the discovery deposition could not have been used as evidence prior to a substitution of the parties, the discovery deposition of the decedent is not admissible as evidence under 212(a)(5).” Berry v. American Standard Inc., 382 Ill. App. 3d 895, 888 N.E.2d 740 (Ill. App. (5th Dist.) May 19, 2008). A discovery deposition may not be used in place of live testimony upon the death of a party/deponent. Id.

All of this law was overruled when the Supreme Court Rules were amended in 2011. The new rule excludes parties who have deceased from being subject to the exclusionary rule. It is important to note, however, that the amendment is not retroactive. So if you’re a party, you die before an evidence deposition is taken, and your suit is prior to January 1, 2011, good luck proving your case. Your discovery dep isn’t going to help.