The Illinois Supreme Court Rules provide a variety of tools by which each party to a law suit may request information from your spouse/ex-spouse or third parties who hold information relevant to the pending divorce case. These tools include notices to produce, subpoenas, interrogatories, requests to admit and financial affidavits.
These requests can ask for virtually anything. “[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action” Ill. Sup. Ct. R. 201(b)(1)
These various requests go out and almost all of them have to be answered or objected to within 28 days. Failure to comply in whole or in part is common in an Illinois divorce case. During a divorce, you will likely be your spouse’s least favorite person. Your spouse may destroy evidence, “forget” evidence, or simply refuse to communicate.
How do you compel full and complete discovery in an Illinois divorce case?
While this article focuses on the difficulties of getting complete discovery from a divorcing spouse, I have found in my years of practice that most people have little to hide. The average person has a W-2 job, a retirement account, a house and a car. These spouses turn over what little documentary evidence they have of these items without much fuss.
“Discovery is intended as, and should be, a cooperative undertaking by counsel and the parties, conducted largely without court intervention, for the purpose of ascertaining the merits of the case and thus promoting either a fair settlement or a fair trial.” Williams v. A.E. Staley Manufacturing Co., 83 Ill. 2d 559, 566 (Ill. 1981)
It is the people that have a variety of valuable assets that obfuscate, evade and refuse compliance with discovery requests. Therefore, it is almost always worth enforcing discovery requests because they are hiding evidence of assets for a reason…they do not want to share those marital assets and income.
“For a party trying to obtain legitimate discovery, dealing with disruptive or manipulative conduct can be demoralizing and distracting, and, certainly, has the potential to increase expenses. Also, it often leads to increased tensions and a decay of civility between lawyers. Indeed, unless and until trial judges clamp down on discovery abuses-be it engaging in stonewalling, foot dragging, obfuscation, or any other shenanigans-little incentive exists for the already recalcitrant party to comply.” Locasto v. City of Chi., 6 N.E.3d 435, 440 (Ill. App. Ct. 2014)
The First Step: The 201(k) Letter
Parties have to be friendly at first. They have to reach out to resolve their differences. They have to write “You owe me X for discovery but you only gave me Y. When can I expect X?”
“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)
I say they have to write the 201(k) letter because there has to be some proof that the discovery conference actually happened or you cannot pursue any further enforcement in court.
“Under Rule 201(k) any motion regarding discovery must include a statement that after personal consultation the parties were unable to resolve their differences.” In re Marriage of Lai, 253 Ill. App. 3d 111, 115 (Ill. App. Ct. 1993)
That statement should include the 201(k) letter as an exhibit proving the 201(k) conference happened.
If an opposing counsel sends you a 201(k) letter after saying something as obtuse as “you didn’t comply,” politely let the opposing counsel know that your 201(k) conference is not yet complete because you don’t know what’s missing and you’d like to continue the conference until you truly know what discovery remains outstanding.
You do not need to send a 201(k) letter if the other party is already in violation of an order the court made about discovery.
“[C]ompliance with Rule 201(k) is not required when…a party has disregarded discovery orders issued by the circuit court.” Nedzvekas v. Fung, 374 Ill. App. 3d. 618 (2007).
Motion To Compel Discovery In An Illinois Divorce Case
After the 201(k) conference has happened and discovery is still not complied with, the discovery requester may file a motion to compel discovery. The court must not doddle. The court must address your filed motion to compel discovery as soon as possible.
“In the face of discovery abuses, it is incumbent upon the opposing party to promptly request relief, and it is incumbent upon the trial court to consider the request, and, where indicated, to issue orders that will discourage further abuse. Before ruling on such a request, the trial court considers whether there is a good faith basis for the objection having been interposed. The court must determine whether the objecting party has set forth a colorable claim of privilege or whether the objector has made an adequate showing that compiling the requested information would require substantial expense, labor, or disruption of business.” Zagorski v. Allstate Ins. Co., 54 N.E.3d 296, 307-8 (Ill. App. Ct. 2016)
Illinis courts can order discovery produced and/or order sanctions related to the non-compliance with discovery.
“Discovery for all parties will not be effective unless trial courts do not countenance violations, and unhesitatingly impose sanctions proportionate to the circumstances.” Buehler v. Whalen, 70 Ill. 2d 51, 67 (1977). “Illinois courts are becoming less tolerant of violations of discovery rules, even at the expense of a case being decided on the basis of the sanction imposed, rather than on the merits of the litigation.” Harris v. Harris, 196 Ill. App. 3d 815, 820 (1990) (citing Lavaja v. Carter, 153 Ill. App. 3d 317 (1987)
An Illinois divorce court has a variety of measures to enforce compliance. None is so powerful or flexible as Illinois Supreme Court Rule 219
“If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision…the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:
- That further proceedings be stayed until the order or rule is complied with;
- That the offending party be debarred from filing any other pleading relating to any issue to which the refusal or failure relates;
- That the offending party be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue;
- That a witness be barred from testifying concerning that issue;
- That, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that the offending party’s action be dismissed with or without prejudice;
- That any portion of the offending party’s pleadings relating to that issue be stricken and, if thereby made appropriate, judgment be entered as to that issue” Ill. Sup. Ct. R. 219(c)
These five remedies let an Illinois divorce do almost anything to enforce discovery compliance. An Illinois divorce judge can freeze a divorce case, dismiss a divorce case, not allow the offender to present their own evidence and/or impose attorney’s fees.
The power to prevent the non-cooperative party from presenting their own case due to a failure to comply with discovery is probably the most impactful. But, parties have due process rights that need to be balanced against their own non-compliance.
“A just order of sanctions under Rule 219(c) is one which, to the degree possible, insures both discovery and a trial on the merits…When imposing sanctions, the court’s purpose is to coerce compliance with discovery rules and orders, not to punish the dilatory party.” Shimanovsky v. Gen. Motors Corp., 181 Ill. 2d 112, 123 (Ill. 1998)
“It is well established that trial courts have wide discretionary powers in the matters of pretrial discovery, the inherent authority to control their dockets, and the inherent authority to enter sanctions for a party’s failure to obey valid orders.” In re Marriage of Faber, 2016 IL App (2d) 131083
A court can go far as to supervise the entire discovery process (normally, the parties are supposed to work it out themselves). Judicial supervision of discovery is a sign that something seriously wrong has happened in the case and one or both parties can no longer be trusted to tender or ask for discovery
Objections To Discovery Requests In An Illinois Divorce
If a party in an Illinois divorce is represented by an attorney they are not going to simply ignore discovery or refuse to cooperate with discovery. A competent Illinois divorce attorney will likely make some kind of objection to the requested discovery in the hopes that the objection will be sustained and the discovery will not have to be tendered.
The discovery request is stayed until the objection is ruled on by an Illinois divorce judge. So, the requesting party must make a motion to rule on the objection as soon as possible.
“When a trial court is presented with a motion to rule on objections or discovery matters, the court must promptly rule on those matters. The failure to issue a ruling, and where appropriate, to impose sanctions, constitutes an abuse of the court’s discretion, and an abdication of its authority and responsibility.” Zagorski v. Allstate Ins. Co., 54 N.E.3d 296, 308 (Ill. App. Ct. 2016)
Most objections to discovery have a glimmer of reasonability to them. In such cases, the Illinois divorce judge can issue a protective order requiring that the documents tendered by “under seal,” that sensitive information be parsed out of the documents, or any other requirement which resolves the objections main points.
“The court may at any time on its own initiative, or on motion of any party or witness, make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.”, Ill. Sup. Ct. R. 201(c)(1)
Sometimes, the objection is that the discovery simply isn’t worth it. Digging up old records may be relevant but would have little impact on the court’s final decision relative to the effort and expense of finding, organizing and turning over the documents.
“When making an order under this Section, the court may determine whether the likely burden or expense of the proposed discovery, including electronically stored information, outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.” Ill. Sup. Ct. R. 201(c)(3)
Not all objections to discovery are pure of heart. Many objections are often simply to delay and frustrate the opposing party.
“[A]n attorney abuses the discovery process when he or she asserts a litany of grounds for objection to discovery without any intention or any ability to defend those grounds.” Zagorski v. Allstate Ins. Co., 54 N.E.3d 296, 307 (Ill. App. Ct. 2016)
These objections must be written and they must be signed by an attorney.
“Every pleading, motion and other document of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated…. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Ill. Sup. Ct. R. 137(a)
If an Illinois divorce judge finds that the objection was made in order to unnecessarily delay or needlessly increase the cost of litigation, the court may force the litigant and/or the attorney to pay the attorney’s fees of the party contesting the objection.
“If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.” Ill. Sup. Ct. R. 137(a)
Seasonably Updating Discovery
A party who was requested to produce documents via discovery has an ongoing obligation to keep tendering new documents that fit the description provided in the discovery request as those documents are made or discovered.
“A party has a duty to seasonably supplement any prior response to the extent of documents, objects or tangible things which subsequently come into that party’s possession or control or become known to that party.” Ill. Sup. Ct. R. 214(d)
This usually becomes an issue of current pay stubs and bank statements. Other documents that are found after the request is answered will probably remain a mystery to the requester if they haven’t already filed a motion to compel discovery regarding the original discovery requests.
What If The Party Doesn’t Have the Documents Requested Via Discovery In An Illinois Divorce?
If you don’t have what’s being asked for, you don’t have it and can’t tender it. Your obligation to provide those documents is done. End of story.
“[T]here is no obligation upon a party to produce evidence which is not in his custody, possession or control but in that of a third person.” Mykytiuk v. Stamm, 196 Ill. App. 3d 928, 934 (Ill. App. Ct. 1990)
A party who has produced all that they have control and possession of can verify their maximal compliance by filing an affidavit of completeness (also known as an “affidavit of compliance”).
“The producing party shall furnish an affidavit stating whether the production is complete in accordance with the request.” Ill. Sup. Ct. R. 214(c)
Don’t get too trigger happy with the affidavit of completeness. Sometimes a party may not have a document but they definitely have access to it. For example, the bank has your bank statements but you definitely have access to those statements. In such a situation, you cannot simply say “I don’t have it” if you definitely can get it.
“A party may be required to produce documents which are in the possession of third parties, where he has custody or control of those documents.” Central Nat’l Bank v. Baime, 112 Ill. App. 3d 664, 669 (Ill. App. Ct. 1982)
When a third party has the documents that the requested party has access to, the requested party cannot simply say “just ask the third party, they have what you’re looking for.” The requesting party is not required to subpoena each actual holder of the documents when the party can simply access the documents without having to use subpoena power.
A discovery requester is “not required to pursue each and every available method of discovery.” Hawkins v. Wiggins, 92 Ill. App. 3d 278, 283 (Ill. App. Ct. 1980)
What Happens If A Motion To Compel Discovery Is Ignored
If a motion to compel discovery is ignored, a hearing on the motion for contempt will be scheduled, the motion to compel will be heard by the judge who will inevitably rule that the party must produce the documents if they reasonably have control or access to those documents.
“Failure to comply [with court orders regarding discovery are] unreasonable if it is a deliberate, contumacious, or unwarranted disregard of the court’s authority.” In re Marriage of Barnett, 802 NE 2d 279 – Ill: Appellate Court, 4th Dist. 2003
If the producing party continues to ignore the order to produce the documents, the party can then be held in contempt of court.
“A court is vested with inherent power to enforce its orders and preserve its dignity by the use of contempt proceedings.” People v. Warren, 173 Ill. 2d 348, 368, 671 N.E.2d 700, 710 (1996).
The order to tender the discovery and a verified petition attesting that the discovery was not tendered is sufficient for a finding of indirect civil contempt.
“The existence of an order of the court and proof of willful disobedience of that order are essential to any finding of indirect contempt.” In re Marriage of Spent, 342 Ill. App. 3d 643, 653, 796 N.E.2d 191, 200 (2003)
The penalty for contempt may be jail…until the discovery is complied with. If this isn’t truly compelling…I don’t know what is.
“Whether for direct or indirect civil contempt, the order must specify what the contemnor is required to do, so that by compliance contemnor can purge himself of contempt and be discharged from jail.” Pancotto v. Mayes, 304 Ill. App. 3d 108, 112, 709 N.E.2d 287, 290 (1999)
In addition to possible jail time, 219 sanctions may be issued (as described above) which would prevent the contemnor from presenting evidence in their own case.
Discovery is usually where the wheels come off in a divorce. If you don’t have discovery, then you don’t have evidence. If you don’t have evidence you have zero leverage of threatening a hearing or trial. A command of the rules of discovery is essential in getting what you deserve in your Illinois divorce case. To learn more about how ask for the documents you want…and get them, contact my Chicago, Illinois family law firm to schedule an appointment with an experienced Illinois divorce lawyer.