USA – ILLINOIS Trends and Developments Contributed by: Michael Forde, Brian O’Meara, Ellie Carey and John Ransford, Forde & O’Meara LLP
Deposition categories and limits Illinois discovery rules contain a number of relatively unusual provisions governing depositions. First, unlike the federal system, Illinois distinguishes between dis - covery depositions and evidence depositions. When serving a notice for deposition, the notice must identi - fy, inter alia, “whether the deposition is for purposes of discovery or for use in evidence” (S. Ct. Rule 206 (a)). By rule, discovery depositions are limited to three hours (as opposed to seven hours under the federal rules). However, the rule also states that a court can extend that time limit “upon showing that good cause warrants a lengthier examination” (S. Ct. Rule 206 (d)). As a general matter, courts view the three-hour limit as being geared towards personal injury cases, and will often grant additional time in complex commercial litigation. There is no time limit for evidence depositions. Par - ties typically take an evidence deposition to preserve testimony for trial when the witness will be unable to attend the trial. Therefore, an evidence deposition is treated as trial testimony, and objections must be made during the deposition, or they are waived. Expert reports and discovery Illinois generally allows broader discovery from testify - ing expert witnesses than the federal rules do. These differences might be a reason to be cautious in com - municating with experts even in federal cases, if there is a chance of related litigation in Illinois state courts. The requirements for expert disclosures are also dif - ferent. Three examples of this are as follows. • First, under the federal rules, draft expert reports are not discoverable; see Fed. R. Civ. P. 26 (b) (4)(B); Fed. R. Civ. P. 26, Committee Notes. The Illinois rules contain no such bar to discovery of draft reports, and the broad scope of discovery allowed generally suggests that draft reports are discoverable. Often, for their mutual convenience, parties in Illinois cases will nevertheless agree that the federal rule against disclosure of draft expert reports applies. • Second, under the federal rules, communications between an expert witness and a party’s attorneys are generally not discoverable; see Fed. R. Civ. P.
on or raise factual matters outside of the pleading. A court faced with a 2-615 motion construes the allega - tions liberally and will only grant a 2-615 motion where the pleader cannot prove any set of facts that would entitle them to a judgment. If a pleader can replead their claims with additional facts, they will generally be given a chance to do so, but courts have the dis - cretion to allow successive amendments to defective pleadings; see generally 735 ILCS 5/2-615. A 2-619 motion, on the other hand, raises defects or defences outside of the pleading that defeat or avoid the pleader’s claims. There are several types of defects or defences that may be asserted in a 2-619 motion, including that: • the court lacks subject matter jurisdiction; • a party lacks capacity to sue or be sued; • the claims raised in a pleading are being litigated by the same parties in another action; • the claims raised in the pleading have already been adjudicated; • the claims were not brought within the statute of limitations; • the claims have been released, satisfied or dis - charged in bankruptcy; • the claims are unenforceable under the Statute of Frauds; • the claims cannot be brought against the moving party because they are a minor or are otherwise disabled; or • some other affirmative matter avoids or defeats the claim, such as laches, waiver or immunity. A 2-619 motion accepts the factual and legal suffi - ciency of the pleading and must show that even if the pleader is entitled to a judgment, the moving party cannot be held liable for all or a portion of the judg - ment. A party moving to dismiss a pleading under Section 2-619 is not confined to the allegations in the pleading and may raise factual matters outside of the pleading, provided those facts are supported by an affidavit or other evidence, and provided that the mov - ing party is not simply contesting the factual allega - tions in the pleading; see generally 735 ILCS 5/2-619.
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