Almost anything is allowed to be asked in a deposition. You could ask a deponent “what color underwear are you wearing?”
There are no questions provided for the deposition provided in advance. Everything is a surprise. In a divorce, there are so many possible embarrassing questions. After all, your soon-to-be former spouse knows (almost) everything about you.
Furthermore, you must answer the questions at a deposition even if you object (usually). Meanwhile, a court reporter will be memorializing those answers to possibly be included as an exhibit in a court file that is available to the public at large.
Because of these facts and issues, people get very nervous when they receive a notice of deposition. Especially when the case is a divorce where the most personal details can and will be discussed. Is there any way that deposition questions can be limited to appropriate subjects in advance of the deposition?
What Is A Deposition In An Illinois Divorce?
A deposition is “a witness’s out-of-court testimony that is reduced writing (usually by a court reporter) for later use in court or for discovery purposes.” Black’s Law Dictionary (11th ed. 2019)
Depositions are one of the discovery tools provided by the Illinois Supreme Court Rules.
“Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination or written questions” Ill. Sup. Ct. R. 132.
“Any party may take the testimony of any party or person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action.” Ill. Sup. Ct. R. 202
What Can You Ask At A Deposition In An Illinois Divorce?
It’s important to understand that depositions are discovery. Discovery is both the request for items from the opposing party and third parties and the receipt (or lack thereof) of those items.
Depositions specifically have no limitations except for the Illinois supreme court’s discovery rules. “The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules.” Ill. Sup. Ct. R. 206(c)(1)
The discovery process is “a mechanism for the ascertainment of truth, for the purpose of promoting either a fair settlement or a fair trial.” Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 282 (1982)
More information is almost always considered better than less information.
“The objectives of pretrial discovery are to enhance the truth-seeking process, to enable attorneys to better prepare for trial, to eliminate surprise and to promote an expeditious and final determination of controversies in accordance with the substantive rights of the parties.” D.C. v. S.A, 178 Ill. 2d 551, 561 (Ill. 1997)
“[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party.” Ill. Sup. Ct. R. 201(b)(1)
“Relevance” is the only limitation to discovery (outside of the bar to asking for privileged information)
Virtually everything is relevant because discovery that could lead to relevant discovery is deemed to be relevant discovery.
“For purposes of Rule 201(b)(1), relevance has been interpreted broadly to include not only that which is admissible at trial, but also that which leads to admissible evidence.” Salvator v. Air & Liquid Systems Corp., 2017 IL App (4th) 170173, ¶ 65.
Asking The Court To Limit Questions In A Deposition in An Illinois Divorce
Discovery rules as written in the Illinois Supreme Court Rules are NOT absolute bars to any limitation.
“[T]he rules of discovery, are designed to be flexible and adaptable to the infinite variety of cases and circumstances appearing in the trial courts.” Kaull v. Kaull, Docket No. 2-13-0175, 7 (Ill. App. Ct. 2014)(quotes omitted)
There can be limits on discovery (and depositions in particular), though.
“Although the scope of permissible discovery is indeed broad, it is not unlimited; the court, in exercising its discretion, must balance “the needs of truth and excessive burden to the litigants.” Y-Not Project, Ltd. v. Fox Waterway Agency, 50 NE 3d 42 – Ill: Appellate Court, 2nd Dist. 2016
An Illinois divorce judge can impose any limitation on discovery that the judge deems proper.
“The court may at any time on its own initiative, or on motion of any party or witness, make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression” Ill. Sup. Ct. R. 201(c)(1)
“Trial courts are invested with considerable discretion to supervise the course of discovery as the court deems appropriate.” Skolnick v. Altheimer Gray, 191 Ill. 2d 214, 223 (Ill. 2000)
Despite the strong bias that everything is discoverable, an individual Illinois divorce judge can limit discovery for reasons they find convincing.
“Trial courts are afforded wide latitude in determining the permissible scope of discovery.” Payne v. Hall, 2013 IL App (1st) 113519
In advance of a deposition any party can file a motion asking the judge to limit the scope of the upcoming deposition for any reason that would be persuasive to the judge.
The judge can then apply any limit on a deposition’s questions they deem reasonable.
“Trial courts have discretion to determine whether justice requires a protective order [and] what the parameters of the order should be. The reviewing court will uphold the trial court decision on a protective order absent an abuse of discretion. A court abuses its discretion only if it acts arbitrarily, without the employment of conscientious judgment, exceeds the bounds of reason and ignores recognized principles of law; or if no reasonable person would take the position adopted by the court.” Payne v. Hall, 2013 IL App (1st) 113519
The basis of almost every request to limit the scope of a deposition will be the privacy of the deponent. You will have to convince the judge that those privacy concerns outweigh the utilty of any of the questions you are asking the judge to limit.
“Proportionality. The court may determine whether the likely burden or expense of the proposed discovery…outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.” Ill. Sup. Ct. R. 201(c)(3)
The privacy concerns of the deponent or any party are legitimate in the eyes of the court.
“Proportionality imposes a second limitation on what is discoverable: even if it is relevant, information need not be produced if the benefits of producing it do not outweigh the burdens. The legitimate privacy concerns of the responding party are one of the burdens that a court can and should consider in conducting this balancing test.” Carlson v. Jerousek, 2016 IL App (2d) 151248
Once an order to limit the scope of the deposition has been issued, when the deponent’s attorney has “objections to the questioning during the deposition, he should state, ‘I’m not allowing my client to answer based on the Judge’s ruling’ and certify the question to the circuit court.” Badea v. Phillips, 906 NE 2d 615 – Ill: Appellate Court, 1st Dist., 1st Div. 2009
Clearly all these discovery rules above apply to ALL types of discovery. Depositions are just a little bit scarier because they are a live person asking potentially surprising and embarrassing questions without the opportunity to object in front of a judge.
Questions You Cannot Ask In A Deposition In An Illinois Divorce
If you cannot get a court order to limit the scope of a deposition, you can still object to certain deposition questions.
Discovery depositions are not to define the truth but rather to explore the truth. Each answer is not the definitive answer. Any answer given by the deponent will have to be given again in court where objections like “relevance,” “asked and answered”, ”hearsay,” etc. will be honored.
Until then, the deponent has to answer the question. This is why it is so important to limit the scope of a deposition. You will have to answer every non-privileged question, otherwise.
Privileged information is communication between a doctor and their patient, a therapist and their patient, a lawyer and their client, etc. Those matters are undiscoverable and, therefore, can be objected to during a discovery deposition.
“When information or documents are withheld from disclosure or discovery on a claim that they are privileged pursuant to a common law or statutory privilege, any such claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced or disclosed and the exact privilege which is being claimed.” Ill. Sup. Ct. R. 201(n)
“Objections at depositions shall be concise, stating the exact legal nature of the objection.” Ill. Sup. Ct. R. 206(c)(3)
Those objections will then be recorded by the court reporter for possible review by the judge.
“Objections made at the time of the examination to the qualifications of the officer taking the deposition, to the manner of taking it, to the evidence presented, or to the conduct of any person, and any other objection to the proceedings, shall be included in the deposition.” Ill. Sup. Ct. R. 206
If the questions in a deposition become, cumulatively, harassing the deponent’s attorney has the right to terminate the deposition.
“At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in any manner that unreasonably annoys, embarrasses, or oppresses the deponent or party, the court may order that the examination cease forthwith or may limit the scope and manner of taking the examination as provided by these rules.” Ill. Sup. Ct. R. 206(e)
After a deposition’s midway termination, an order to limit the scope of the deposition (if reasonable) will surely be issued.