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Litigation

: The Illinois Trial Practice Blog

Production from Non-Parties and Records Depositions: Some Generalities

By Evan Schaeffer

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Here are some broad principles that will apply to many situations involving production from non-parties:

A non-party person or entity will be compelled to produce documents and appear for a deposition with a subpoena, not a notice;
For deposition subpoenas in Illinois, see generally SCR 204(a). The procedure can be summarized as follows--

--Obtain a subpoena from the court clerk;
--Prepare the subpoena;
--Prepare a deposition notice;
--Serve the subpoena and the notice on the non-party deponent;
--Serve the notice and a copy of the subpoena on the parties to the case.

If the entity that has the records objects to producing them, the entity may file some variation of a motion to quash the subpoena; parties to the case may also have objections to the subpoena that will need to be litigated;
Once you receive the records you are seeking, you might decide you don't need a deposition at all. In Illinois, this possibility is provided for in SCR 204(a)(4). However, you will often want to depose a records custodian to confirm that you've received everything you asked for and to ask questions establishing a foundation for the admission of the records at trial;
At the deposition, proceed as follows--

--Name
--Employer
--Job title
--Job duties

--Familiarity with entity's procedures for preparing and keeping records

--Subpoena; mark it and have the witness identify it
--Ask the witness to identify the documents produced pursuant to
the subpoena; mark the exhibits
--Determine whether the witness brought all the documents requested by the subpoena

--For particular documents, have the witness lay whatever foundation you think you'll need to get the documents admitted at trial, e.g., by establishing the following points--

--Who prepared the document?
--Was the document prepared pursuant to the creator's job duties?
--Were the documents prepared at or near the time of the matters recorded therein?
--Did the person who prepared the documents have personal knowledge of the facts reported therein?
--Were the documents prepared in the regular course of the entity's business?
--Were the documents retained pursuant to the entity's regular business procedures and in the regular course of the entity's business?

Before or after questioning, seek to obtain a stipulation from opposing counsel as to the admissibility of the documents at trial; you can decide whether this makes the deposition itself unnecessary.

For more about third-party production and deposition procedures in Illinois, see Illinois Pretrial Practice, Duncan-Brice, Flannery, Kelly and Owens (James Publishing).