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201(k) Communication And Discovery In An Illinois Divorce
During an Illinois divorce, sooner or later, you will receive an email or a letter that says “pursuant to Illinois Supreme Court Rule 201(k)…” and then a bunch of demands will follow.
What is this? A threat? Or just empty legal jargon?
Actually, it’s important to know what rule 201(k) is and what you must do when the opposing party is claiming to invoke it. Additionally, you must know how to use rule 201(k) in order to get the discovery you need so you will have the evidence you need to negotiate, settle or try your Illinois divorce case.
What Is Illinois Supreme Court Rule 201(k)
The Illinois Code Of Civil Procedure empowers the Illinois Supreme Court to provide rules under which the court system will be governed. The “Supreme Court may provide by rule for the orderly and expeditious administration and enforcement of this Act.” 735 ILCS 5/1-105
One of those rules, 201(k), requires the parties to cooperate in resolving any disputes they have regarding discovery.
“Reasonable Attempt to Resolve Differences Required. The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery. Every motion with respect to discovery shall incorporate a statement that counsel responsible for trial of the case after personal consultation and reasonable attempts to resolve differences have been unable to reach an accord or that opposing counsel made himself or herself unavailable for personal consultation or was unreasonable in attempts to resolve differences.” Ill. Sup. Ct. R. 201(k)
After a party to an Illinois divorce issues discovery requests to the opposing side or a 3rd party, the party receiving the discovery request has 28 days to answer said request. If they have not answered the discovery request to the requester’s satisfaction, the requester must first try to resolve the issue BEFORE filing anything with the court.
Rule 201(k) was “designed to curtail undue delay in the administration of justice and to discourage motions of a routine nature.” Urmoneit v. Purves, 338 NE 2d 423 – Ill: Appellate Court, 2nd Dist. 1975
Hopefully, this 201(k) conference will resolve the outstanding issue and the other party will comply with discovery as initially requested.
“Cooperation between counsel and good-faith efforts by them to resolve disputes without judicial intervention are essential to the efficient and expeditious administration of justice in this State” Spiller v. Continental Tube Co., 447 NE 2d 834 – Ill: Supreme Court 1983
Even if the opposing counsel or party is being uncooperative that “does not justify dispensing with a good-faith effort to contact counsel and resolve differences. In proper circumstances Rule 201(k) might be satisfied by a showing of active, but unsuccessful, efforts to contact, and proof of telephone calls unreturned or letters unanswered might, in some instances, suffice.” Williams v. AE Staley Manufacturing Co., 416 NE 2d 252 – Ill: Supreme Court 1981
The discovery requester must wait the 28 days (or other court ordered deadline) before invoking rule 201(k)
“A statement per Supreme Court Rule 201(k)…that the parties were unable to resolve their discovery problems would have been premature before the records [are] due” Hawkins v. Wiggins, 415 NE 2d 1179 – Ill: Appellate Court, 1st Dist. 1980
After the 201(k) communication has occurred, the discovery requester can file a motion to compel discovery.
“Failure to include a statement in compliance with Rule 201(k) should result in dismissal of the motion [to compel]” Brandt v. John S. Tilley Ladders Co., 495 NE 2d 1269 – Ill: Appellate Court, 1st Dist. 1986
A violation of rule 201(k) is also the basis for a motion for sanctions.
“If the court finds that the refusal or failure [to provide requested discovery] was without substantial justification, the court shall require the offending party or deponent, or the party whose attorney advised the conduct complained of, or either of them, to pay to the aggrieved party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney’s fees.” Ill. Sup. Ct. R. 219(a)
“The imposition of sanctions for noncompliance with discovery rules and court orders rests largely within the circuit court’s discretion” In re Marriage of Lai, 625 NE 2d 330 – Ill: Appellate Court, 1st Dist., 2nd Div. 1993
Once an order is entered requiring the party to answer discovery, no further 201(k) communication is required.
“[C]ompliance with Rule 201(k) is not required when, as in this case, a party has disregarded discovery orders issued by the circuit court.” Nedzvekas v. Fung, 872 NE 2d 431 – Ill: Appellate Court, 1st Dist., 2nd Div. 2007
“[A]ny noncompliance with Rule 201(k) is immaterial when enforcement is sought of a prior court order which has been defied by an opposing party.” Gayton v. Levi, 496 NE 2d 1045 – Ill: Appellate Court, 1st Dist. 1986
Rule 201(k) and Depositions and Interrogatories
For depositions and interrogatories, the deposed or the interrogated either set up a time to be deposed or answer the interrogatories or they do not. The only that thing a 201(k) letter needs to include is a request that they set up a time for the deposition or answer the interrogatory.
A 201(k) letter was deemed sufficient where “a letter to [the opposing party’s] attorney, that [they were] to contact him with an alternate date for the deposition.” Harris v. Harris, 555 NE 2d 10 – Ill: Appellate Court, 1st Dist. 1990
Rule 201(k) and Notices To Produce
201(k) communication is far more common in regards to Notices To Produce. This is because a Notice To Produce is not an all or nothing discovery request. The party turns over documents they have access or control of. Sometimes they provide it all and sometimes they only provide some of what’s requested.
In these cases of partial compliance, it’s important to have an actual 201(k) conference where the requester explains what they believe is still missing. A letter with the ignominious words “pursuant to rule 201(k) ”will not be enough to satisfy the 201(k) requirement for “personal consultation and reasonable attempts to resolve differences”
“[C]ircumstances wherein the plaintiff consulted personally with the defense attorney and made reasonable attempts to resolve all differences regarding discovery constituted substantial compliance with Supreme Court Rule 201(k).” Lavaja v. Carter, 505 NE 2d 694 – Ill: Appellate Court, 2nd Dist. 1987
“Compliance with Rule 201(k) may be demonstrated by the record.” Simmons v. Shimek, 488 NE 2d 283 – Ill: Appellate Court, 3rd Dist. 1985
“[201(k)]is satisfied so long as the record reflects that the movant attempted to resolve his difficulties with his opponent prior to seeking judicial intervention in discovery matters.” Antkiewicz v. Pax/Indianapolis, Inc., 627 NE 2d 185 – Ill: Appellate Court, 1st Dist., 2nd Div. 1993
The “record” is what is in evidence via testimony or exhibits submitted to the court for entry. For example, an Illinois court found that “[t]he record in the instant case is replete with instances in which the plaintiff consulted personally with the defense attorney and made reasonable attempts to resolve all differences regarding discovery. This, we conclude, constitutes substantial compliance with Supreme Court Rule 201(k)” John Mathes & Associates, Inc. v. Noel, 418 NE 2d 1104 – Ill: Appellate Court, 5th Dist. 1981.
In contrast another Illinois court dismissed 201(k) sanctions because “[i]t does not appear that counsel made any real effort to resolve any differences over discovery before moving for the imposition of sanctions, as required by Supreme Court Rule 201(k)” Fabian v. Norman, 486 NE 2d 335 – Ill: Appellate Court, 2nd Dist. 1985
If it’s clear the parties are not in agreement, it is probably not necessary to go through all these steps of verifying good faith communication.
“[T]echnical compliance with Rule 201(k) is not required where the record reflects that the parties were unable to reach an accord after reasonable attempts to resolve differences.“ Hartnett v. Stack, 607 NE 2d 703 – Ill: Appellate Court, 2nd Dist. 1993
Rule 201(k) and Subpoenas In An Illinois Divorce
A subpoena is how lawyers typically get discovery from 3rd parties who are not directly involved in a case.
“[S]ubpoenas may be issued by an attorney admitted to practice in the State of Illinois who is currently counsel of record in the pending action. The subpoena may command the person to whom it is directed to produce documents or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted under these rules” Ill. Sup. Ct. R. 204(a)(1)
A lawyer in an Illinois divorce may subpoena a bank, for example to get bank records relating to either party in the divorce.
The requirement of a 201(k) conference is not exclusively for the actual litigants (spouses) in a divorce. If the discovery request is being made to a 3rd party, then a 201(k) conference is still necessary between the discovery requester and the 3rd party. “Presumably, the “parties” referred to in Supreme Court Rule 201(k) are those to the discovery motion and not necessarily the parties to the underlying litigation.” Mistler v. Mancini, 443 NE 2d 1125 – Ill: Appellate Court, 2nd Dist. 1982
The requirement of a 201(k) conference for 3rd parties only really applies to depositions of third parties. Illinois courts have deemed subpoenas of a third party for documents, a “subpoena deuces tecum” do not have to observe rule 201(k)’s friendly communication requirements.
“The subpoena duces tecum when used alone is independent of the discovery rules and therefore can be classified as a nondiscovery device. Because this form of a subpoena duces tecum is a nondiscovery device, any objections to its issuance need not contain a Rule 201(k) statement. The materials sought in such a subpoena technically must be returned to the court. However, a subpoena duces tecum when coupled with a notice to take the deposition of the person to whom it is directed under Rule 204(a)…is clearly a discovery procedure requiring any objections to it to contain a Rule 201(k) statement… While courtesy among counsel and judicial efficiency might be fostered by the use of a Rule 201(k) conference under the circumstances of this case, the supreme court has said that the subpoena duces tecum is independent of the discovery rules.” In re Marriage of Riemann, 576 NE 2d 944 – Ill: Appellate Court, 5th Dist. 1991
It’s important to comply with discovery to the best of your ability but it’s also important to resolve any discovery issues outside of court. Court is expensive and divorce judges hate supervising issues as mundane (and resolvable) as discovery disputes.
If court enforcement of discovery is inevitable, it’s important that you complied with the prerequisite rule 201(k) communication before filing your motion to compel. Otherwise, your motion to compel will be dismissed and your discovery and divorce will be delayed even further.