CHAIN OF CUSTODY OF EXHIBITS PRESENTED AT DEPOSITIONS


There isn't much in the local rules, so Supreme Court Rule 206 seems to be the best we have.


Rule 206 - Method of Taking Depositions on Oral Examination

Linked here: 

https://casetext.com/rule/illinois-court-rules/illinois-supreme-court-rules/article-ii-rules-on-civil-proceedings-in-the-trial-court/part-e-discovery-requests-for-admission-and-pretrial-procedure/rule-206-method-of-taking-depositions-on-oral-examination


quotes from text:

"(2) Any exhibits or other demonstrative evidence to be presented to the deponent by any party at the deposition shall be provided to the officer administering the oath and all other parties within a reasonable period of time prior to the deposition."


From the comments section at the bottom of the page:


" Paragraph (h)

The committee is of the opinion that telephonic and other remote electronic means depositions should be allowed by a specific paragraph of Rule 206. It is meant to reduce unnecessary discovery costs. The committee recommends that all other demonstrative evidence to be presented to the deponent be premarked before being provided to the officer administering the oath and the other parties. The parties may agree pursuant to Rule 201(i) to amend or waive any conditions of paragraph (h)."

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Link to supreme court statement on rule changes on depositions due to covid:

https://www.illinoiscourts.gov/Resources/cb8e866f-5ada-4c7c-bf06-0091d1019efc/042920.pdf



Rule 206 seems to be modified due to the pandemic beginning in March, 2020.

An article at the link below describes some changes:

https://www.dlapiper.com/en/us/insights/publications/2020/05/illinois-courts-response-to-the-covid-19-pandemic---issue-2/

From the article:

"Illinois Supreme Court

 

On April 29, 2020, the Illinois Supreme Court issued an order temporarily amending Illinois Rule 206(h) governing remote depositions. The amended rule is effective immediately. The key changes are as follows: (i) attorneys are no longer required to provide exhibits and demonstrative evidence to the court reporter and other parties prior to the deposition if the participants can view the exhibits in real time during the deposition; (ii) parties no longer have the right to be with the deponent during the deposition; and (iii) time spent in a remote deposition addressing technology issues no longer counts against the time limit for the deposition set by Rule 206(d), stipulation, or court order. "



Tom's comments:  It seems exhibits should be presented to the court officer before the deposition begins.  This seems to mean they are in the officer's possession the whole time and are retained by the officer after the deposition is over.

In the case of Gagnon exhibit 1, the exhibit was created during the deposition.  From these rules it should go to the court officer during or at the end of the Gagnon deposition.

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link:

https://www.depo.com/updatefaq_exhibits.html

quotes from website:

"Over the years, various questions have come up from attorneys and their staff regarding the court reporter’s responsibility for the handling of deposition exhibits and other documents. Following are some of the questions which have arisen and the general way in which such situations are handled. In this article we will be primarily looking at the issue from the viewpoint of the Federal Rules of Civil Procedure since most states have fashioned their rules on the federal model."

"Why doesn’t the reporter keep a copy of the exhibits?

This question most often comes up when an attorney wants to order a copy of a deposition after the reporter has already released custody of the original transcript to one of the parties or the court. A reporter is generally required by law to maintain a paper or electronic copy of their notes or the finished transcript (e.g. Federal Civil Rule 30 (f)(2) and similar state rules). The transcript is the product of the reporter and any copy of the transcript later produced by the reporter is an exact duplicate in content of the original.

Exhibits, however, are not the product of the court reporter and it is sometimes critically important which is the original and which is the copy. All exhibit copies should be made from the original exhibit, rather than from a copy of the exhibit. While this may not be a problem when the exhibit is a high-quality photocopy of an article written by an expert, when you get into x-rays, color photographs, light handwriting, blueprints, etc., there can be significant differences between an original exhibit and a copy of a copy. Therefore, the law makes provisions for the parties in the case to examine and make copies of the original deposition exhibits. Chain of custody of an exhibit can also be important, and if the reporter is maintaining a duplicate set of exhibits which is later copied and attached to later transcripts, then you are in essence setting up two sets of original exhibits.

Exhibits that include blueprints and color photographs
should be created from the original because they can be
very different when made from a copy.

Under certain instances the reporter will retain the originals. A reporter can act as a document depository for a case or series of cases as described in the Federal Judicial Center’s Manual for Complex Litigation – Third, Section 21.444. In other cases, the parties may stipulate that the reporter retain all original exhibits, or a copy of them, in a binder for use throughout all the depositions in the case. But, absent such an arrangement, the reporter does not keep a copy of the exhibits."


"Must the exhibits be attached to the deposition?

Under Federal Civil Procedure Rule 30(f), exhibits, “shall, upon the request of a party, be marked for identification and annexed to the deposition…” It is up to the parties whether or not they want a copy of the exhibits with their copy of the transcript. State law varies on this subject, though it is customary to attach the exhibits."


"What if they are not attached?

“Documents referred to in a deposition are admissible in connection with it where properly identified at the trial, even though they are not attached to the deposition. …A deposition should not be rejected because a certain paper referred to therein or which should have been annexed thereto is not produced, unless the production of such papers goes to the very gist of the action. “(26A C.J.S. Depositions Section 90b.)

Mitigating factors include the availability of the document and the existence of parol evidence on the point covered in the missing exhibit."

Tom's note:  In this case, the production of Gagnon exhibit 1 goes to the very gist of the action.


"What is the difference between attaching an original document and a copy of it?

Rule 30(f) allows for a witness to provide a copy, rather than the original, and for all parties to examine the original and the copy to see that they are the same. Evidence Rules 1001-1004 cover when a duplicate may be used. Per Rule 1003, “A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances where it would be unfair to admit the duplicate in lieu of the original.” As the Advisory Committee on Rules Notes to Rule 1003 state, “When the only concern is with getting the words or other contents before the court with accuracy and precision, then a counterpart serves equally as well as the original, if the counterpart is the product of a method which insures accuracy and genuineness.”"


"What if only one side wants a document attached?

The court reporter is not in a position to rule on the admissibility of any evidence. Rule 30 states that exhibits are attached “upon the request of a party” and that “all objections … to the evidence presented … shall be noted by the officer upon the record of the deposition; but the examination shall proceed, with the evidence being taken subject to the objections.”"


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website link:

https://www.kusar.com/best-practice-for-deposition-exhibits/

"First and foremost, please remember that potential documents provided before the proceedings are not considered an “exhibit” yet. The document must be submitted as an exhibit and marked by the court reporter before it becomes an “exhibit.”"


"Tracking Exhibits

·         It is still the responsibility of the court reporter to track exhibits / exhibit numbers."


"Custody of Exhibits

·         Exhibits still are to remain in the custody and control of the court reporter unless there is a stipulation otherwise by counsel. 

    If an exhibit is to be retained by counsel or the witness providing it, a stipulation should be placed on the record."


"Exhibit Never Received

 

    If an exhibit which was to be provided to the court reporter after the conclusion of the depo was never provided, the transcript will be processed without the exhibit.  "


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Federal rules on custody of deposition exhibits:

https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_legal/frcpweb/FRC00033.HTM

quote:

(f) Certification and Filing by Officer; Exhibits; Copies; Notice of Filing.

(1) The officer shall certify that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. This certificate shall be in writing and accompany the record of the deposition. Unless otherwise ordered by the court, the officer shall securely seal the deposition in an envelope or package indorsed with the title of the action and marked "Deposition of [here insert name of witness]" and shall promptly file it with the court in which the action is pending or send it to the attorney who arranged for the transcript or recording, who shall store it under conditions that will protect it against loss, destruction, tampering, or deterioration. Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition, and may be inspected and copied by any party, except that if the person producing the materials desires to retain them the person may

(A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if the person affords to all parties fair opportunity to verify the copies by comparison with the originals, or

(B) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case. 

end quote

Tom's notes:  The fideral rules look identical to the Illinois state rules.  Identical sentences, identical wording.

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Federal Court rules:

https://civilprocedure.uslegal.com/discovery/federal-rules-of-civil-porcedure-regarding-discovery/


When deposition ends, the officer should state on the record that the deposition is completed and should also state on record the arrangement made by the attorneys about the custody of the transcript or recording of exhibits  or any other related matters.

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