The United States District Court, N.D. Illinois, Eastern Division imposed a new order for the taking of depositions of physicians during the COVID-19 pandemic.

The case is a slip and fall case against Walmart.

The court moved to protect medical providers in a sweeping order due to the fact that physicians are very busy… all hands cannot be on deck if some of them are at a law office sitting for a deposition.

The court ordered:

In applying Rule 26(b)(1)’s proportionality requirement including “whether the burden or expense of the proposed discovery outweighs the likely benefit,” the Court is imposing the following protocol on the parties in this case as part of its discretion in supervising discovery and with particular attention to weighing the burden and benefit of proposed deposition discovery from medical providers:

  1. Before any deposition discovery of medical treaters is scheduled, and before any subpoenas are served on such witnesses, the parties, through counsel, shall meet and confer by telephone to discuss the intended list of medical treaters to be deposed. The parties shall attempt to reach agreement as to whether these depositions should proceed. Or, alternatively, if the parties conclude that settlement of the matter should be pursued actively at this time, they may reach an agreement to defer the medical provider depositions pending a settlement conference, and they shall make a report to Court as to any such agreements in a written status report on April 10, 2020.
  2. As to each such provider whose deposition is still being sought after the foregoing meet and confer, the party seeking the deposition shall disclose to the Court the following in a written document styled as a “Response to Court’s Medical Provider Deposition Protocol”:
  3. The proposed deponent’s name, hospital affiliation, and area of practice or specialty.
  4. The proposed deponent’s current and anticipated involvement in preparation or response to the COVID-19 public health emergency. Counsel should obtain this information from the provider witnesses or their counsel.
  5. The nature and extent of the proposed deponent’s involvement in the treatment of the plaintiff or other party, including the dates of treatment and the type of treatment provided.
  6. The proposed deponent’s relative importance to the case, as stated by the party seeking the discovery. Such party should consider the proposed deponent’s relative role in the party’s treatment in comparison to other treaters whose depositions are sought. Parties should consider this portion of their protocol response as their opportunity to set forth reasons why the burden of deposing a given medical treater at this time ought not to prevent the deposition under the concept of proportionality to the needs of the case under Rule 26(b)(1).
  7. The degree to which alternative avenues might be available to obtain the same discovery or sufficient discovery, including but not limited to the depositions of other witnesses, the admissibility of summary medical records by stipulation, affidavits, or Rule 31 depositions by written questions.
  8. The “Response to Court’s Medical Provider Deposition Protocol” shall be filed in advance of serving any subpoena on a medical provider, and the subpoena will not be permitted without order of court. If the subpoena already is served, the Response is to be filed with the Court before any deposition for a medical treater is confirmed or any notice of deposition is served. As to any depositions already noticed, the notices of deposition are to be considered vacated until the party files the Response and obtains a court order permitting the deposition.
  9. A party opposing the taking of a medical treater deposition may file a “Reply As To Court’s Medical Provider Deposition Protocol” within 10 days of filing of the Response, and such Reply may include or incorporate any statement(s) by medical providers or their retained counsel.
  10. The Court will rule promptly on requests made to depose medical treaters under this protocol. The Court may alter or eliminate this protocol as conditions dictate.

In this matter, the parties have ample time to consider and comply with the foregoing protocol. The Court has ordered the parties to file a status report on May 12, 2020, to address ongoing discovery progress in this matter. Before filing that report, the parties should consider the foregoing protocol and confer telephonically so they may include in that report a plan for compliance with the protocol.


For a full copy of the opinion, see here:,30