In the recent case of Adams v. Sarah Bush Lincoln Health Center (pdf), a defendant appealed a ruling by the trial court preventing it from reading questions from the plaintiff's evidence deposition of a treating physician in its own case-in-chief. In affirming the trial court, the Fourth District made several points about Illinois evidence depositions that are useful to remember:
- Cross-examination during an evidence deposition must be conducted as though the deponent were testifying at trial. Rule 206(c)(2);
- As at trial, the scope of cross-examination is limited by the scope of the direct. There is a good illustration of this principle at work in the case;
- The scope-of-direct rule also works as a limititation on Rule 212(c), which otherwise allows a party to respond to the reading of an evidence deposition by counter-reading those parts of the deposition "which ought in fairness to be considered in connection with the part read or used."
If you want evidence from a witness the other side has noticed for an evidence deposition in your own case, you may have to do your own evidence deposition, especially if your opponent doesn't cover in direct those topics you'd like to get into for trial. Even if your opponent does cover your topics of interest in direct, you cannot rely on him to use the deposition in his own case. If he doesn't, you'll be out of luck, since you cannot cross-examine the witness and then seek to have the cross-examination admitted into your own case-in-chief.
The Adams case suggests a failsafe procedure. If your opponent notices an evidence deposition of a witness from whom you also need testimony, you can use his deposition notice as an opportunity to conduct your own evidence deposition. Rule 206(b) provides that "when a notice of the taking of a deposition has been served, any party may take a deposition under the notice."
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