Posted on April 2, 2023

Preventing Harassing Depositions In An Illinois Divorce

Depositions are powerful. In a deposition, the opposing counsel can ask a person any kind of question under oath with zero warning as to the substance of the questions with no one supervising the appropriateness of the questions.

“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. 201(a)

“The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules. The deponent may be questioned by any party as if under crossexamination.” Ill. Sup. Ct. R. 206(c)(1)

In an Illinois divorce, depositions can be requested with little notice. Even the time of the deposition is determined by the party conducting the deposition (technically).

“A party desiring to take the deposition of any person upon oral examination shall serve notice in writing a reasonable time in advance on the other parties. The notice shall state the time and place for taking the deposition; the name and address of each person to be examined, if known, or, if unknown, information sufficient to identify the deponent.” Ill. Sup. Ct. R. 206

In reality, the party taking the deposition and the deponent should work together to find an appropriate time to schedule the deposition. “The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery.”  Ill. Sup. Ct. R. 201(k)

If the person getting deposed, the “deponent,” does not wish to be deposed, they may file a motion to quash the deposition subpoena requiring their attendance. If a motion to quash is not filed and the deponent does not appear for the deposition…the deponent can be held in contempt of court and the court can issue a body attachment (a civil order of arrest).

Depositions are a discovery tool and discovery is allowed liberally in Illinois civil procedure.

It is well established that Illinois Supreme Court rules permit liberal pretrial discovery.” Dufour v. Mobil Oil Corp., 301 Ill. App. 3d 156, 160 (Ill. App. Ct. 1998)

The only way to stop a deposition is by filing a motion to quash said deposition.

“When a conflict does arise and an attorney feels his adversary’s discovery request is unreasonable or oppressive, he should not dig his heels in and become recalcitrant. He should seek the protection of the trial court.” Payne v. Coates-Miller, Inc., 386 NE 2d 398 – Ill: Appellate Court, 1st Dist. 1979

“Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery shall not operate to delay any other party’s discovery.” Ill. Sup. Ct. R. 201(n)

“Conversely, if an attorney feels an adversary is unreasonably impeding the progress of pretrial discovery, his proper recourse is to enlist the aid of the trial judge. Generally, if the attorney’s discovery request is legitimate, the trial judge will order the other party’s compliance. A refusal to obey such a discovery order strikes at the very life-line of the court.” Payne v. Coates-Miller, Inc., 386 NE 2d 398 – Ill: Appellate Court, 1st Dist. 1979

The best argument to stop discovery is that the information being requested can be found in other documents. Therefore, the deponent’s time need not be consumed with duplicative questions in a deposition.

“Duplication of discovery methods to obtain the same information and discovery requests that are disproportionate in terms of burden or expense should be avoided.”  Ill. Sup. Ct. R. 201(a)

This is what makes depositions different from other discovery requests…you have no idea what the questions will be. So, it is very hard to object to a question you are not yet aware of.

Similarly, it is difficult to insist that a deposition is for the purposes of harassment when the deposition questions remain unknown.

“[T]he power [to order a party to appear] should only be exercised for good cause and in such manner that a party may not be subjected to harassment, oppression or hardship.” Oakview New Lenox Sch. Dist. v. Ford Motor Co., 378 NE 2d 544 – Ill: Appellate Court, 3rd Dist. 1978 (citations omitted)

At best, you can limit types of questions via a motion.

“Proportionality. When making an order under this Section, the court may determine whether the likely burden or expense of the proposed discovery, including electronically stored information, 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)

Furthermore, a deponent can request that any answers will remain secret via a protective order.

“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)

If you truly believe that a deposition will be harassing, you can request that the judge supervise the deposition.

“Upon the motion of any party or witness, on notice to all parties, or on its own initiative without notice, the court may supervise all or any part of any discovery procedure.” Ill. Sup. Ct. R. 201(c)(1)

There is no chance that a judge will take time out of their schedule to supervise a deposition. Judicial supervision is overkill. If you do not want to answer a deposition question…you can simply refuse.

“Objections at depositions shall be concise, stating the exact legal nature of the objection.” Ill. Sup. Ct. R. 206(c)(3)

Most trial objections like “relevance“, “hearsay“, “calls for a legal conclusion” do not apply in a discovery deposition.

“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 only real objection in a deposition is that the information requested is privileged. “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)

If the deponent’s lawyer has “objections to the questioning during the deposition, he [or she] 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

That singular objection does not stop the deposition…only that particular question. “If a party or other deponent refuses to answer any question propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer.” Ill. Sup. Ct. R. 219(a)

In extreme cases, a series of questions may be deemed harassing. In such a case, a deposition can be suspended pending the filing of a motion explaining why the deposition was suspended.

“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)

At the time of the hearing, you will finally be able to present the judge with the previously mysterious and now obviously harassing questions. Knowledge of the actual questions will allow the judge to limit further questions or prevent any further depositions.

“Discovery is not a tactical game to be used to obstruct or harass the opposing litigant.” Mistler v. Mancini, 443 NE 2d 1125 – Ill: Appellate Court, 2nd Dist. 1982

“An examination terminated by the order shall be resumed only upon further order of the court.”  Ill. Sup. Ct. R. 206(e)

If the court found the suspension of the deposition improper (or the questions harassing), the court may levy attorney’s fees against the appropriate party.

“The court may require any party, attorney or deponent to pay costs or expenses, including reasonable attorney fees, or both, as the court may deem reasonable.”  Ill. Sup. Ct. R. 206(e)

Finally, a divorce judge’s decision about discovery will be unappealable unless “no reasonable person could adopt the view taken by the circuit court.” Skolnick v Altheimer & Gray, 191 Il12d 214 (2000)

Sitting for a depositions is not fun. Be sure that you have an Illinois divorce attorney who understands what is allowed during a deposition (almost everything) and what is not (or is at least willing to stop the deposition…temporarily). Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney today.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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