Motion to Compel Depositions in Illinois

Purpose and Significance of a Motion to Compel Depositions

“The purpose of discovery is to facilitate a discovery of the facts and an application of the law so that justice results.” (Ainsworth Corp. v. Cenco Inc. (1987) 158 Ill. App. 3d 639, 645 citing Tansey v. Robinson (1960), 24 Ill. App.2d 227, 235.) “The underlying reason for the liberalization of modern discovery rules is ‘to replace the traditional “combat” theory of litigation with the more equitable principle that litigation should be a joint search for the truth.’” (Ainsworth, id., [internal citation omitted].)

“The right of any party to a discovery deposition is basic and fundamental in today's adversary system, and, accordingly, the right of one party imposes a duty on the other party. That duty cannot be avoided by technical maneuvers or other conduct which results in destroying the purpose of modern discovery principles.” (Slatten v. City of Chicago (1973) 12 Ill. App. 3d 808, 813.)

Procedural Steps Involved in Filing a Motion to Compel Depositions

Requirements for Deponents

Illinois Supreme Court Rule 204(a)(2) (eff. July 1, 2014) provides:

“A deponent shall respond to any lawful subpoena of which the deponent has actual knowledge, if payment of the fee and mileage has been tendered. Service of a subpoena by mail may be proved prima facie by a return receipt showing delivery to the deponent or his authorized agent by certified or registered mail at least seven days before the date on which appearance is required and an affidavit showing that the mailing was prepaid and was addressed to the deponent, restricted delivery, return receipt requested, showing to whom, date and address of delivery, with a check or money order for the fee and mileage enclosed.”

(Bradfield v. Target Corp., 2018 Ill. App. 2d 170203 [Ill. App. Ct. 2018] quoting Rule 204(a)(2).)

Distinction Between Discovery Depositions and Evidence Depositions

“Illinois is unique in that it distinguishes between discovery depositions and evidence depositions; that difference is significant in that discovery depositions are primarily used to obtain information, to commit witnesses to particular stories, and to obtain admissions, whereas evidence depositions are fully admissible as to what an unavailable witness would testify if present in the courtroom.” (Ainsworth Corp., supra, 158 Ill. App. 3d at 646 citing Slatten v. City of Chicago (1973) 12 Ill. App.3d 808, 813, citing E. Cleary, Illinois Evidence sec. 1.5, at 7 [2d ed. 1963].)

Former Employees as Deponents

Rule 204(a)(3) requires employers to produce their employees for deposition. (Benefield v. Big H Amusements, Inc., 2020 Ill. App. 4th 190613, 10 [Ill. App. Ct. 2020] citing Ill. S. Ct. R. 204(a)(3) [eff. July 1, 2014].) However, “[o]nce an individual loses his or her status as an employee, the employer owes no obligation to produce him or her for a deposition.” (See Spiller v. Continental Tube Co. (1982) 105 Ill. App. 3d 790, 793-94, 434 N.E.2d 850, 852-53 (1982) [finding the employer had no obligation to produce an employee that was retired]; see also Redmond v. Central Community Hospital (1978) 65 Ill. App. 3d 669, 674 [“find[ing] no provision in Rules 201 through 218 allowing a party or a court to require a litigant to submit for deposition persons who are not under the control of that party and who necessarily would have to be subpoenaed to obtain their presence.”])

Standard of Review and Burdens of Proof

“Discovery rulings are generally within the trial court's discretion and [a reviewing court] will not disturb them absent an abuse of that discretion.” (Ramos v. Kewanee Hospital, 2013 IL App (3d) 120001, ¶ 76.)

“Rule 203 states that the trial court, ‘in its discretion’ (Ill. S. Ct. R. 203 [eff. Jan. 1, 1996]) may order that a party's deposition take place in Illinois, so [the Court's] standard of review is abuse of discretion.” (Jorie, LP v. Roberts Mcgivney Zagotta, LLC, 2021 IL App (2d) 190519, 18 [Ill. App. Ct. 2021] citing Brandt v. John S. Tilley Ladders Co. (1986) 145 Ill. App. 3d 304, 307 [the “plaintiff, as a non-resident, was subject to the exercise of the circuit court's discretion as to where the deposition would be taken, ‘at a designated place in this State or elsewhere for *** [that] purpose,’ under Supreme Court Rule 203.”])

Meet and Confer

“The parties must facilitate discovery between themselves and attempt to resolve disputes without intervention from the trial court if possible.” (Ibrahim v. Reprod. Genetic Inst., 2013 Ill. App. 120113, 24-25 [Ill. App. Ct. 2013].)

“Illinois Supreme Court Rule 201(k) (Ill. S. Ct. R. 201(k) [eff. Jan. 1, 1967]) provides in pertinent part as follows:

‘The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery. Every motion with respect to discovery shall incorporate a statement that counsel responsible for trial of the case after personal consultation and reasonable attempts to resolve differences have been unable to reach an accord or that opposing counsel made himself or herself unavailable for personal consultation or was unreasonable in attempts to resolve differences.’” (Id., quoting Ill. S. Ct. R. 201(k) [eff. July 1, 2002].)

Legal Precedents and Case Law on Motions to Compel Depositions

In Bank of Am., N.A. v. Sanchez, “[b]ased on the contents of the general motion to compel depositions, [the Appeals Court] conclude[d] the trial court did not abuse its discretion by denying defendants’ motion to compel depositions” where “defendants’ motion to compel depositions of two additional witnesses, [was] filed two days prior to the scheduled hearing for plaintiff's motion for summary judgment.” (Bank of Am., N.A. v. Sanchez, 2015 Ill. App. 3d 140360, 6 [Ill. App. Ct. 2015].)

“Failure to renew the motion to compel waives any argument with respect to the trial court's ruling on that motion.” (Fabiano v. City of Palos Hills (2002) 336 Ill. App. 3d 635, 658 citing citing Cf. Veritone Co. v. Industrial Comm'n (1980) 81 Ill. 2d 97, 105 [holding that failure to renew a motion that was taken under advisement but not decided waives the right to argue the disposition of the motion on appeal.])