Discovery is the term for the process where litigants exchange required and requested documents in order to have all the necessary information to either settle or try their case.
“The purposes of litigation are best served when each party knows as much about the controversy as is reasonably practicable.” Mistler v. Mancini, 111 Ill. App. 3d 228, 231 (Ill. App. Ct. 1982)
There is a variety of ways to request discovery from the opposing side in an Illinois divorce: mandatory financial affidavits, notices to produce, interrogatories, depositions and subpoena deuces tecums.
“Information is obtainable as provided…through any of the following discovery methods: depositions upon oral examination or written questions, written interrogatories to parties, discovery of documents, objects or tangible things, inspection of real estate, requests to admit and physical and mental examination of persons.” Ill. Sup. Ct. R. 201(a)
Requested financial affidavits and their supporting documents, notices to produce and subpoena deuces tecums can generate dozens to thousands of documents which need to be sorted through.
If a divorce litigant owns a business, receives executive compensation, has had multiple jobs with separate 401(k)s or works for cash the discovery produced will be excessive, lacking and inevitably byzantine.
How Do You Sort Through Produced Discovery In An Illinois Divorce?
Produced discovery often arrives relatively unorganized. Produced discovery is usually a jumble of documents that should correspond to each paragraph in your notice to produce, subpoena deuces tecum or financial affidavit’s supporting documents.
It is your duty to sort the documents by organizing the documents and documenting what was received. Whether the produced discovery is physical or electronic, you must sort and document the discovery. Do NOT rely on your opponent’s organization of the tendered documents.
Documents should be sorted by type. For example, bank statements belong with other bank statements. Bank statements for one particular account should be grouped with the other bank statements for that account. Then the bank statements must be put in some kind of order (almost always chronological).
If the documents produced are physical, scan the documents and label the now electronic documents appropriately by date (backwards) associated with the document and the name on. Example “2022.10.22 Bank of America Statement”.
If the documents are electronic, rename the document and divide or merge the documents as you deem appropriate.
Now you should have the discovery which was tendered to you organized so YOU can understand it. It is time to explain to other side what is missing.
Explaining To The Other Side What Is Missing From Their Tendered Discovery.
It is important to understand that the requested discovery is never the produced discovery. Something is always missing.
It is not your job to ensure that the opposing side did a good job producing discovery. You are there to point out what a poor job they did in answering your specific discovery requests. So, start with the presumption that the opposing side has failed in their most basic duty and begin writing a 201(k) letter.
A 201(k) letter is official communication explaining the failures in the produced discovery and demanding compliance…except you have to be nice in order to “reasonably resolve discovery differences.”
“Reasonable Attempt to Resolve Differences Required. The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery.” Ill. Sup. Ct. R. 201(k)
“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)
A polite 201(k) letter will read “On [date] we sent your office the attached Notice To Produce. On [date] we received your response which included:”
Now you list all the documents that the opposing side provided to you organized per your organization method as described earlier.
Then refer to the Notice To Produce, Subpoena Deuces Tecum or Financial Affidavit to determine what was asked for but was NOT produced.
This list is your NEW checklist for what discovery is still missing. Your 201(k) letter can include a deadline to produce such documents.
The 201(k) letter is both your notes as to what you received, what is still missing and your communication with the opposing side about such matters. You do not need an index or a spreadsheet. Use the 201(k) letter as your official record of what you have and what you still need.
Point Out Errors In The Discovery
Pointing out errors in discovery requires cross referencing the discovery that has been tendered with the other discovery that’s been tendered. This almost always means pointing out inconsistencies between the financial affidavit’s summary of their finances and the actual documents that reflect the actual finances. Interrogatory answers should also accurately reflect the documents actually produced.
Cross-checking the tendered discovery against other discovery is an automatic way to double-check your own work in sorting through received discovery.
Mistakes or outright falsehoods should be brought to the other side’s attention. Along with demonstrating your thorough analytical skills and embarrassing their attempt at compliance, it will allow you to remind the other side that they must update their discovery production with the correct documents and/or information.
“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)
What If The Other Side Claims Not To Have The Discovery Requested?
The produced discovery should include an affidavit verifying that the documents produced are a complete production.
“The producing party shall furnish an affidavit stating whether the production is complete in accordance with the request.” Ill. Sup. Ct. R. 214(c)
People happily perjure themselves every day by signing affidavits of completeness when they have not completely answered the discovery request.
Parties to a divorce are required to produce the documents in their possession. Parties often shrug their shoulders and say “I just don’t have what you’re asking for.”
“[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)
It is important to remind the parties that they have a duty to produce documents they COULD have access to.
“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)
The test of whether a party has access to a requested document is one of common sense. A party definitely has access to bank account statements where they are named on the account. A party probably doesn’t have access to trust documents where the party is a beneficiary of that trust.
The opposing party may again shrug their shoulders and say “just subpoena the document from whoever actually has control of the document.”
Politely remind the reluctant document tenderer in your 201(k) communication that you are “not required to pursue each and every available method of discovery.” Hawkins v. Wiggins, 92 Ill. App. 3d 278, 283 (Ill. App. Ct. 1980). Your notice to produce is a perfectly reasonable request and they will comply or a motion to compel will be filed.
What Happens After Produced Discovery Remains Incomplete?
If the produced discovery still remains incomplete, file a motion to compel discovery and attach as “exhibit A” your 201(k) letters which so carefully analyze the discovery requested and produced. This time, a judge will be reviewing your careful work as they order the adverse party to produce what they must…or face sanctions.
“[Rule 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
In addition to sending constant correspondence to the opposing side, you can schedule a deposition which is, effectively, a meeting with the other side to ask them where the missing discovery is…while they answer under oath.
This process continues until all of the discovery is finally tendered and organized…or the parties settle the matters without further discovery.
When Can You Stop Requesting Discovery In An Illinois Divorce?
Clearly, discovery can and will go on forever unless your opponent is as thorough and diligent as you are. At some point, enough is enough.
You can stop asking for discovery when discovery provided you with the necessary evidence for YOUR case.
For the financial aspects of an Illinois divorce, there is, conceptually, very little to prove.
Child support is “determine[d by] each parent’s monthly net income” 750 ILCS 505(a)(1.5)(A)
“Maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/503(b-1)(1)(A)
Once you are satisfied with having sufficient evidence of the other party’s income, you don’t need to ask for anything else…you have your evidence.
The other financial issue in an Illinois divorce is the division of marital assets.
An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)
Assets merely need to be proven to exist in order to be divided. The court will order the asset be sold and the proceeds divided or that the asset be valued and then the party who keeps the asset must pay the other party for the share. If you want an asset to be divided, you must merely prove that the asset exists. Once you have any documentation that the asset is owned by a spouse…you are done.
The asset does not to be proven marital and, thus, divisible. Marital is the default status of any asset either party owns at the time of divorce.
“Any doubt as to the nature of the property must be resolved in favor of the finding that it is marital” In re Marriage of Steel, 2011 IL App (2d) 080974
If you want the asset to be deemed non-marital and, thus, non-divisible, you must want the asset to be your property. If the asset is your non-marital property you are the only one with that evidence that you bought the asset before the marriage or that the asset was given to you. You do not need to ask the other party for anything.
Likewise, If you want a disproportionate value of the asset to be awarded to you, it is unlikely that documents produced in discovery will determine a disproportionate distribution.
Illinois divorce courts allocate marital assets based on:
“(1) each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property…
(3) the value of the property assigned to each spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having the primary residence of the children;
(6) any obligations and rights arising from a prior marriage of either party;
(7) any prenuptial or postnuptial agreement of the parties;
(8) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(9) the custodial provisions for any children;
(10) whether the apportionment is in lieu of or in addition to maintenance;
(11) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(12) the tax consequences of the property division upon the respective economic circumstances of the parties.” 750 ILCS 5/503(d)”
Very little that the other side produces can possibly help you in your quest to be awarded a greater proportion of the marital assets…so, why are you reminding the opposing side to properly gather their trial exhibits? Furthermore, most of the evidence in favor of a disproportionate allocation of marital assets will be in the form of testimony…and you can’t produce words (you can verify future testimony via deposition, however)
“[T]estimony is evidence.” People ex rel. Hartigan v. ILL. COMMERCE COM’N, 592 NE 2d 1066 – Ill: Supreme Court 1992
Likewise, evidence of who should get more parenting time or more parental decision-making will largely be based on testimony or the findings of a Guardian Ad Litem or Child Representative, 215 examination or 614 expert. There is very little discovery that the parties can or will issue to each other that could possibly help the other party’s case.
The point at which to stop discovery is the point at which you feel comfortable asking for a pretrial conference. At a pretrial conference you can summarize in good faith the facts of the case to your divorce judge. If the other party hasn’t gathered sufficient facts at that time…that is their problem!
If the case cannot be resolved at pretrial, then discovery is no longer about finding facts but, rather, preparing exhibits for trial. You may still need to ask for discovery to have sufficient exhibits for trial.
A thoughtful request to admit after a pretrial will easily narrow down what remains disputed between the parties and, therefore, what must be proven and corroborated via additional discovery.
Discovery is often a disaster in an Illinois divorce. If your divorce lawyer cannot keep a few dozen documents in order…then what is going to happen at trial? To sort out your discovery and your entire divorce, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.