Without making disclosure under this rule, however, a crossexamining party can elicit information, including opinions, from the witness. This freedom to cross-examine is subject to a restriction that applies in actions that involve multiple parties and multiple representation. In such actions, the cross-examining party may not elicit undisclosed information, including opinions, from the witness on an issue on which its position is aligned with that of the party doing the direct examination.
Ill. Sup. Ct. R. 213
(March 28, 2002)
The purpose of this paragraph is to prevent unfair surprise at trial, without creating an undue burden on the parties before trial. The paragraph divides witnesses into three categories, with separate disclosure requirements for each category.
"Lay witnesses" include persons such as an eyewitness to a car accident. For witnesses in this category, the party must identify the "subjects" of testimony-meaning the topics, rather than a summary. An answer must describe the subjects sufficiently to give "reasonable notice" of the testimony, enabling the opposing attorney to decide whether to depose the witness, and on what topics. In the above example, a proper answer might state that the witness will testify about: "(1) the path of travel and speed of the vehicles before impact, (2) a description of the impact, and (3) the lighting and weather conditions at the time of the accident." The answer would not be proper if it said only that the witness will testify about: "the accident." Requiring disclosure of only the subjects of lay witness testimony represents a change in the former rule, which required detailed disclosures regarding the subject matter, conclusions, opinions, bases and qualifications of any witness giving any opinion testimony, including lay opinion testimony. Experience has shown that applying this detailed-disclosure requirement to lay witnesses creates a serious burden without corresponding benefit to the opposing party.
"Independent expert witnesses" include persons such as a police officer who gives expert testimony based on the officer's investigation of a car accident, or a doctor who gives expert testimony based on the doctor's treatment of the plaintiff's injuries. For witnesses in this category, the party must identify the "subjects" (meaning topics) on which the witness will testify and the "opinions" the party expects to elicit. The limitations on the party's knowledge of the facts known by and opinions held by the witness often will be important in applying the "reasonable notice" standard. For example, a treating doctor might refuse to speak with the plaintiff's attorney, and the doctor cannot be contacted by the defendant's attorney, so the opinions set forth in the medical records about diagnosis, prognosis, and cause of injury might be all that the two attorneys know about the doctor's opinions. In these circumstances, the party intending to call the doctor need set forth only a brief statement of the opinions it expects to elicit. On the other hand, a party might know that a treating doctor will testify about another doctor's compliance with the standard of care, or that a police officer will testify to an opinion based on work done outside the scope of the officer's initial investigation. In these examples, the opinions go beyond those that would be reasonably expected based on the witness' apparent involvement in the case. To prevent unfair surprise in circumstances like these, an answer must set forth a more detailed statement of the opinions the party expects to elicit. Requiring disclosure of only the "subjects" of testimony and the "opinions" the party expects to elicit represents a change in the former rule, which required detailed disclosures about the subject matter, conclusions, opinions, bases, and qualifications of all witnesses giving opinion testimony, including expert witnesses over whom the party has no control. Experience has shown that the detailed-disclosure requirement is too demanding for independent expert witnesses.
"Controlled expert witnesses" include persons such as retained experts. The party can count on full cooperation from the witnesses in this category, so the amended rule requires the party to provide all of the details required by the former rule. In particular, the requirement that the party identify the "subject matter" of the testimony means that the party must set forth the gist of the testimony on each topic the witness will address, as opposed to setting forth the topics alone.
A party may meet its disclosure obligation in part by incorporating prior statements or reports of the witness. The answer to the Rule 213(f) interrogatories served on behalf of a party may be sworn to by the party or the party's attorney.
Parties are to be allowed a full and complete cross-examination of any witness and may elicit additional undisclosed opinions in the course of cross-examination. This freedom to cross-examine is subject to a restriction that, for example, prevents a party from eliciting previously undisclosed contributory negligence opinions from a coparty's expert.
Note that the exception to disclosure described in this paragraph is limited to the cross-examining party. It does not excuse the party calling the witness from the duty to supplement described in paragraph (i).
The material deleted from this paragraph now appears in modified form in paragraph (g).
The application of this rule is intended to do substantial justice between the parties. This rule is intended to be a shield to prevent unfair surprise but not a sword to prevent the admission of relevant evidence on the basis of technicalities. The purpose of the rule is to allow for a trial to be decided on the merits. The trial court should take this purpose into account when a violation occurs and it is ordering appropriate relief under Rule.
The rule does not apply to demonstrative evidence that is intended to explain or convey to the trier of fact the theories expressed in accordance with this rule.
(Revised June 1, 1995)
The provision of former Rule 19-11(1) as to who is to answer interrogatories served on corporations, partnerships, and associations appears in paragraph (d) of this rule. The provisions of former Rule 19-11(1) stating that both interrogatories and depositions could be employed and that the court may issue protective orders were deleted because these matters are covered in Rules. A prior requirement that the written interrogatories be spaced so as to permit the answering party to answer upon the interrogatory served upon him has been amended to eliminate the spacing requirement, primarily because of the practical and customary way in which interrogatories are answered.
Like paragraph (a) of Rule, which cautions against duplication, this provision states the general policy of the rules for the guidance for the court when it is called upon to frame protective orders or dispose of objections to interrogatories as provided in paragraph (d) of Rule 213.
Paragraph (c) is new. Because of widespread complaints that some attorneys engage in the practice of submitting needless, repetitious, and burdensome interrogatories, paragraph (c) limits the number of all interrogatories, regardless of when propounded, to 30 (including subparts), unless "good cause" requires a greater number.
Paragraph (d) is derived from former Rules 19-11(2) and (3). This paragraph embodies a number of changes in the present practice. The time for answering interrogatories is fixed at 28 days instead of 30 (as in former Rule 19-11(2) ), consistent with the committee's general policy of establishing time periods that are multiples of seven days. Under former Rule 19-11(3), the time for making objections is 15 days. Paragraph (d) increases this to 28 days, making the time limit for answering and objecting the same. The other change in Illinois practice effected by paragraph (d) is the requirement that motions to hear objections to interrogatories must be noticed by the party seeking to have the interrogatories answered. Under former Rule 19-11(3) the objection must be noticed by the party making it. This change was made because the committee believes the party seeking the information should have the burden of seeking a disposition of the objection, and that this will tend to reduce the number of rulings that are necessary by automatically suspending interrogatories which a party is not seriously interested in pursuing. The last phrase provides that the person answering must furnish such information as is available to the party. This phrase was added, as was the same provision to Federal Rulein 1946, to make certain that a corporation, partnership, or association may not avoid answering an interrogatory by disclaiming personal knowledge of the matter on the part of the answering official.
Paragraph (e) has been amended to require a party who elects to answer an interrogatory by referring to documents, to produce the responsive documents as part of the party's answer. When a party elects to respond to an interrogatory by the production of documents, that production must comply with the requirements of Rule.
Paragraph (f) now requires a party to serve the identity and location of witnesses who will testify at trial, together with the subject of their testimony. This is a departure from the previously recognized law. This paragraph, as well as others contained in these rules, imposes a "seasonable" duty to supplement.
In light of the elimination of former Supreme Court Rule 220, the definition of an opinion witness is now a person who will offer "any" opinion testimony. It is the Committee's belief that in order to avoid surprise, the subject matter of all opinions must be disclosed pursuant to this rule and Supreme Court Rule 218, and that no new or additional opinions will be allowed unless the interests of justice require otherwise. For purposes of this paragraph, there is no longer a distinction between retained and nonretained experts. Further, upon written interrogatories, a party must state the subject matter to be testified to, the conclusions, opinions and qualifications of opinion witnesses, and provide all reports of opinion witnesses.
Paragraph (h) is derived from former Rule 19-11(4), which provided that answers to interrogatories could be used to the same extent as the deposition of an adverse party. Under former Rule 19-11(1), interrogatories can be directed only to adverse parties; hence the provision in former Rule 19-11(4) to the effect that the answers could be used as could a deposition of an adverse party. Paragraph (a) of the new rule provides that interrogatories can be directed to any party. Accordingly, paragraph (h) of the new rule provides that the answers can be used to the same extent as a discovery deposition. Former Rule 19-11(4) also contained a statement on the scope of interrogatories, equating the permissible scope of inquiry to that permitted in the taking of a deposition. This provision was deleted as unnecessary in view of the provisions of Rule.
With regard to paragraph (i), the new rule imposes a "seasonable" duty to supplement or amend prior answers when new or additional information becomes known to that party. This is a change from previous discovery requirements and thus eliminates the need for supplemental interrogatories unless different information is sought. The Committee believes that the definition of "seasonable" varies by the facts of each case and by the type of case, but in no event should it allow a party or an attorney to fail to comply with the spirit of this rule by either negligent or wilful noncompliance.
In an effort to avoid discovery disputes, the practitioner is encouraged to utilize interrogatories approved by the Supreme Court pursuant to paragraph (j) whenever possible.