Illinois Supreme Court Rule 212(a)(5) seems to clearly prohibit the use of a deceased plaintiff's discovery deposition as evidence at trial:
(a) *** Discover depositions taken under the provisions of this rule may be used only:
5) upon reasonable notice to all parties, as evidence at trial or hearing against a party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is neither a controlled expert witness nor a party, the deponent’s evidence deposition has not been taken, and the deponent is unable to attend or testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties.
Rule 212(a)(5) (emphasis added).
In Longstreet v. Cottrell, Inc., No. 5-06-0316 (5th Dist. 2007) (pdf), the plaintiff argued that 212(a)(5) should not bar the use at trial of a discovery deposition of a deceased plaintiff if the deposition was also admissible under 212(a)(3), which states that a discovery deposition can be used at trial "if otherwise admissible as an exception to the hearsay rule." According to plaintiff's theory, the discovery deposition would be "otherwise admissible" under the former-testimony exception to the hearsay rule.
Though a worthwhile argument, the Fifth District rejected it, finding itself unable to support an exception to the express prohibition of 212(a)(5)--
The policy in Illinois, as established by the Illinois Supreme Court, specifically disallows the interpretation advanced [by plaintiff]. Given the express prohibition of the use of a deceased party's discovery deposition in Rule 212(a)(5), we are not able to interpret Rule 212(a)(3) to let in portions or the entirety of such a deposition as former testimony. There is no Illinois case law or treatise language directly on point supporting [plaintiff's] theory throughout the 50-plus years that Illinois has recognized the two types of depositions.
The case is recommended for its review of the uses at trial of discovery and evidence depositions, as well as its discussion of the application of the former-testimony exception to the hearsay rule to depositions.