As you may have heard, Pam Zekman of CBS Channel 2 has run a television segment relating to a pending lawsuit against Palos Community Hospital. In the segment, plaintiff’s counsel, Jim Ball, is interviewed along with the parents of a child that suffered brain damage after the hospital allegedly failed to properly treat the mother’s ruptured placenta. The lawsuit and the news coverage detailed allegations that the hospital allegedly committed fraud by claiming on their website that they had an on-site Neonatologist for medical emergencies, but the Neonatologist on the night in question was not located in the hospital. More striking than the fact that these allegations were broadcast on the news during pending litigation is that during the reporting segment, the reporter played a portion of the testimony from the discovery deposition of the physician.
Our position on this is that discovery depositions are absolutely not allowable for media purposes during pending litigation. Illinois Supreme Court Rule 206(g)(3) states that a videotaped discovery deposition shall not be filed with the court except for good cause shown. Absent filing, the videotape is not a public record. Illinois Supreme Court Rule 212(a), which governs how discovery depositions may be used, says nothing about use by the media and certainly does not sanction use for publicity purposes. Further, Illinois case law states that even with an Evidence deposition, the public does not have a right of access to the video until after the video has been shown to a jury. See People v. Pelo, 384 Ill. App. 3d 776 (4th Dist. 2008) citing United States v. McDougal, 103 F.3d 651 (8th Cir. 1996); See also, In re Application of CBS Inc., 828 F.2d 958, 959-60 (2d Cir. 1987). Even when the videotape has been viewed by a jury, the public’s right of access is not absolute and the court has discretion to deny access where the court file may become a vehicle for improper purposes. Sklonick v. Altheimer & Gray, 191 Ill.2d 214 (2000). Obviously, there is a risk with showing a videotaped deposition on the news that the jury pool will be tainted. Once the item has improperly entered the public domain, the discovery sanction should be entry of an order of dismissal of the case or a lessor remedy. Additionally, we all are considering entry of Protective Orders in the future relating to oral discovery.
If you have any questions, please contact any of the Shareholders in our Health Care Group for further information.