Objecting To A Discovery Request

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Objecting To Discovery In An Illinois Divorce

Objecting To A Discovery Request

The steps of an Illinois divorce are simple: file a Petition For Dissolution of Marriage, file the necessary temporary motions, complete discovery, prepare and negotiate a final Judgment of Dissolution of Marriage, Marital Settlement Agreement and/or Allocation of Parenting Time and Parental Responsibilities.

Each of these items doesn’t take too long…except for discovery. Discovery is the process by which the parties get the information necessary to settle or try their case. Without that information, issues will simply be missing from the settlement documents or evidence will be absent in the eventual trial.

In an Illinois divorce “a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts.” Ill. Sup. Ct. R. 201(b)(1)

Illinois courts strongly encourage cooperation with discovery.

“[It] is well established that Illinois Supreme Court rules permit liberal pretrial discovery. ” Dufour v. Mobil Oil Corp., 301 Ill. App. 3d 156, 160 (Ill. App. Ct. 1998)

“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)

“The objectives of pretrial discovery are to enhance the truth-seeking process, to enable attorneys to better prepare for trial, to eliminate surprise and to promote an expeditious and final determination of controversies in accordance with the substantive rights of the parties.” D.C. v. S.A, 178 Ill. 2d 551, 561 (Ill. 1997)

“Illinois recognizes a general duty to disclose.” Dameron v. Mercy Hosp. & Med. Ctr., Docket No. 125219, 6 (Ill. 2020)

For a variety of reasons, during your Illinois divorce, you may not want to disclose something to the opposing side. You may not want a third party to disclose something. Or, a third party, itself, may not want to disclose discovery.

When any party wishes to NOT cooperate with discovery they must file an objection to that discovery request. The objection must contain some articulable reason why the party should not have to participate in this particular discovery request.

The objection must be clear and not a simple “DENY.” Unclear objections are “not merely an affront to the supreme court rules, but a perilous practice. Parties who offer general objections or boilerplate objections run the risk of causing unnecessary delay in the orderly process of discovery, needlessly increasing the costs of litigation, having these objections summarily denied, and preserving nothing for appeal.” Simpkins v. HSHS Medical Group Inc., 2017 IL App (5th) 160478, ¶ 39, 93
N.E.3d 542

Notice of the objection must be served upon all the parties to the divorce action. “Copies of…objections…shall be served on all parties entitled to notice.” Ill. Sup. Ct. R. 214

Overly Burdensome Discovery Requests In An Illinois Divorce

Discovery requests will often ask for everything under the sun. Obtaining a copy of documents, receipts, bank statements from years ago (especially if it was before the marriage) may simply not be conceivably necessary.

An objection to the production of allegedly unnecessary documents requires the court to do a balancing test to determine whether the “juice is worth the squeeze.”

“[T]he 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)

“A party may object to a request on the basis that the burden or expense of producing the requested materials would be disproportionate to the likely benefit, in light of the factors set out in Rule 201(c)(3).” Ill. Sup. Ct. R. 214(c)

In reality, the balancing test should first consider whether what’s being requested is even relevant to the case at hand.

“Discovery should be denied where there is insufficient evidence that the requested discovery is relevant.” Rokeby-Johnson v. Derek Bryant Ins. Brokers, 230 Ill. App. 3d 308, 317 (Ill. App. Ct. 1992)

Almost everything is relevant in the discovery process.

“Great latitude is allowed in the scope of discovery, and the concept of relevance is broader for discovery purposes than for purposes of admitting evidence at trial.” TTX Co. v. Whitley, Ill.App.3d, 556 (Ill. App. Ct. 1998)

Then the court should consider whether the effort to obtain that discovery is worth the likely relevant items the discovery might reveal.

“Even after determining the pretrial discovery request is relevant, however, the circuit court must still balance the needs of truth with the burdens of production through the entry of any protective order appropriate to the action.” Brostron v. Warmann, 190 Ill. App. 3d 87, 91 (Ill. App. Ct. 1989)

Privilege And Objecting To Discovery In An Illinois Divorce Case

While discovery MAY be overly burdensome or possibly irrelevant to a point where a court will not require that discovery to be tendered, privileged information WILL be ordered non-discoverable by an Illinois court.

“All matters that are privileged against disclosure on the trial…are privileged against disclosure through any discovery procedure.” Ill. Sup. Ct. R. 201(b)(2)

Discovery requests are usually asking for documents. Documents contain some kind of communication. If the communication is deemed privileged, it will not be discoverable.

Communication between attorneys and their clients, doctors and their patients, therapists and their patients, and clergy and their parishioners are all deemed to be privileged communications…no matter what was said or written.

Furthermore, if any communication might make a party subject to a criminal investigation through their own words, that party may claim the discovery is privileged due to their 5th amendment right against self-incrimination.

When invoking any privilege, you are going to have to describe the privileged information in the necessary detail so that the court can adequately determine if the requested discovery is actually privileged.

“When information or documents are withheld from disclosure or discovery on a claim that they are privileged pursuant to a common law or statutory privilege, any such claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced or disclosed and the exact privilege which is being claimed.” Ill. Sup. Ct. R. 201(n)

What If You Just Don’t Have The Items Requested In The Discovery Request?

If it is exceptionally difficult for you to obtain the items in discovery, you probably don’t have them at hand…or at all. You are not obligated to tender items you don’t have access to…because that is impossible.

“[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)

Don’t expect the discovery process to stop simply because you say “I don’t have it.” You can then be subject to personal interrogation as to where the discovery is, where you last saw the requested discovery, who may, in fact, have the discovery.

“If the party claims that the item is not in his or her possession or control or that he or she does not have information calculated to lead to the discovery of its whereabouts, the party may be ordered to submit to examination in open court or by deposition regarding such claim.” Ill. Sup. Ct. R. 214(c)

Objecting To Subpoenas In An Illinois Divorce

If the other party cannot get the information they want from you, they will simply subpoena another person in possession or with access to the requested documents.

Illinois attorneys can issue subpoenas without the permission of the court. “[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)

An objection will not stop a subpoena. A motion to quash the subpoena must be filed.

“For good cause shown, the court on motion may quash or modify any subpoena” 735 ILCS 5/2-1101

A motion to quash a subpoena must be noticed to both the attorney who issued the subpoena and the third party who received the subpoena. Please include a polite letter explaining to the third party what a subpoena is, what a motion to quash is, and why they shouldn’t tender any information until your motion to quash has been heard and ruled upon.

How To Respond To An Objection To Discovery Or A Motion To Quash In An Illinois Divorce

Before filing anything, both parties are obligated to talk with each other about any objections, basis for objecting, etc.

“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)

Once that conversation is over (or, more commonly, waived) the party requesting the discovery may file a motion to compel that discovery.

“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)

The motion will largely be by argument and not be an evidentiary hearing. After all, how do you offer evidence of something…when that evidence is being denied.

Because of this, lean into the law that presumes EVERYTHING is discoverable. It is the discovery objector’s duty to prove that your request is overly burdensome or a request of privileged information.

If you are in the depths of the Illinois divorce discovery process and are getting frustrated, contact my Chicago, Illinois family law firm to learn more about how to make the Illinois divorce discovery process work for you.