¶1dissenting:
¶2I agree with the majority that a judge presiding at a trial should not testify as a witness at that trial. Although the majority cites no authority for this proposition, I believe that it is implicit in section 2— 1001(a)(1) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001(a)(1)), which provides, in part, that a change of venue may be had in a civil action where the judge’s testimony is material to either" of the parties to the action.
¶3In the matter before us here, however, the judge was not being called as a witness. He was subpoenaed solely for the purpose of taking his deposition as part of the discovery undertaken by defendant on behalf of his clients. Because discovery may include not only what is admissible at trial, but also that which leads to what is admissible (United Nuclear Corp. v. Energy Conversion Devices, Inc. (1982), 110 Ill. App. 3d 88, 104, 441 N.E.2d 1163, 1174), having the judge submit to a deposition would not necessarily have resulted in his later being subject to call as a witness at the actual trial and, therefore, having to remove himself from the case.
¶4A party’s right to conduct depositions is not, of course, absolute. Supreme Court Rule 202 (107 Ill. 2d R. 202), which deals with discovery through depositions, must be viewed in conjunction with Supreme Court Rule 201 (107 Ill. 2d R. 201), which empowers the courts to deny, limit, condition and regulate discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage or oppression. (People ex rel. Illinois State Dental Society v. Norris (1979), 79 Ill. App. 3d 890, 901, 398 N.E.2d 1163, 1172.) The majority here suggests that it is somehow inherently embarrassing for a trial judge to have to submit to a deposition in a case over which he is presiding. Under its approach, the trial judge in a case could never be deposed as part of that case. In effect, the trial judge would be placed beyond the reach of discovery, regardless of the circumstances. There is no basis for this position. To the contrary, it is flatly inconsistent with Supreme Court Rule 202 (107 Ill. 2d R. 202), which expressly states that “[a]ny party may take the testimony of any party or person by deposition.” (Emphasis added.)
¶5There is nothing in this record to indicate that defendant acted other than in good faith when he requested that the clerk issue the subpoena for the judge’s deposition. His only concern appears to have been obtaining information about developments in the case which he believed to be highly irregular and possibly fraudulent. I fail to see how this would tend to obstruct the court in its administration of justice or derogate from its authority and dignity in any way. Defendant here did nothing to bring the administration of justice into disrepute, nor did he disobey any court order or judgment. The prior order of the court merely denied defendant’s motion for change of venue under section 2 — 1001(a)(1) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001(a)(1)); it did not prohibit defendant from requesting that the clerk issue a subpoena so that he could take the judge’s deposition. If the judge did not think that issuance of the subpoena was proper, what he should have done is simply order that the subpoena be quashed, leaving defendant to pursue the matter on appeal if he so chose.
¶6There is no justification on this record for holding defendant in contempt. I would therefore reverse.