Before a divorce is finalized or a motion in a domestic relations court is finalized, the parties often exchange documents to verify assets, incomes, etc. In lieu of refusing to exchange a document, a party may tender the document with a portion of the document’s contents redacted.
A redaction is “the careful editing of a document, especially to remove confidential references” Black’s Law Dictionary (11th ed. 2019)
Redacting tendered discovery is being clever by half. Redacting discovery is generally not allowed in an Illinois court. This article explains why.
What Is Discovery In An Illinois Divorce?
Discovery is the request of and subsequent production of documents from one party in a lawsuit to another.
“Information is obtainable as provided in these rules 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)
Most discovery requests to another party are requests for documents via a Notice To Produce.
“Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, including electronically stored information as defined under 201 (b)(4), objects or tangible things…or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents, objects, tangible things, or real estate is relevant to the subject matter of the action. The request shall specify a reasonable time” Ill. Sup. Ct. R. 214(a)
Illinois courts agree that more information is good.
“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)
Why Would Someone Redact Tendered Discovery?
A redaction is not the way to refuse to turn over information. If you do not want to turn over information, you must formally object in writing.
The only reasons to not produce documents is that doing so is overly burdensome or the information is privileged.
Redacting and tendering documents is obviously more burdensome than just tendering the documents so an “overly burdensome” objection won’t make any sense when explaining the need to redact.
Privileged information, however, does make sense for redaction. But the first step would be to officially object before the tender.
“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)
It is conceivable that a lawyer or a doctor would have relevant financial information that would include client or patient information. The client or patient information could justifiably be redacted leaving just the financial information (like an invoice or a bill). This is the only justifiable redaction that I can think of.
Despite my hand-wringing on this issue, an Illinois court may allow redaction. “[A] trial judge has discretion to allow redaction of information to the point where the balance shifts in favor of discovery or where redaction has removed all confidential information.” INTERNATIONAL TRUCK AND ENGINE v. Caterpillar, Inc., 814 NE 2d 182 – Ill: Appellate Court, 2nd Dist. 2004
What Should Happen Instead Of Redaction During Illinois Discovery
If a party is asked for information that is allegedly “private”, that party should ask the court to enter a protective order regarding that information.
“Protective Orders. 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. S. Ct. R. 201(c)(1)
“[A] court may consider a protective order limiting access to any disclosed information when determining whether harm will be suffered and to what extent it will be suffered.” INTERNATIONAL TRUCK AND ENGINE v. Caterpillar, Inc., 814 NE 2d 182 – Ill: Appellate Court, 2nd Dist. 2004
After a protective order is entered, the other party can see it…but they can’t share it with anyone else. This eliminates the possibility of mischief that a redaction was trying to avoid.
What You Should Do If You Get Redacted Discovery Responses In An Illinois Divorce
What could more blatantly tell an opposing party that you are trying to hide something than a redaction? You need to find out what exactly was redacted.
The first step is to send out a 201(k) letter.
“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)
Include all the rules and case law in this article in your letter insisting on seeing the documents in their original, unredacted form.
If they still won’t turn over the original, unredacted documents, you must file a Motion To Compel the original, unredacted documents. You know they have them. This will force the party redacting discovery to explain to the court exactly why they are redacting the documents.
“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)
Nothing is THAT private. An Illinois court can review redacted or unredacted documents “in camera” (in the privacy of the judge’s chambers) to determine discoverability. Stuckey v. Renaissance at Midway, 45 NE 3d 1151 – Ill: Appellate Court, 1st Dist., 6th Div. 2015
Furthermore, the point of getting documents via discovery is to possibly use them in court. Redacted documents CANNOT be introduced into evidence making them useless when it truly matters.
“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” Ill. S. Ct. R. 106
Your motion to compel should also include a request for discovery sanctions.
“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)
After all this, you should have the original unredacted documents and maybe even some attorney’s fees.
The redactor may allege that redaction is explicitly allowed by Supreme Court Rule 138.
“A court may order other types of information redacted or filed confidentially, consistent with the
purpose and procedures of this rule.
(c) A redacted filing of personal identity information for the public record is permissible and
shall only include:
(1) the last four digits of the Social Security or individual taxpayer-identification number;
(2) the last four digits of the driver’s license number;
(3) the last four digits of the financial account number; and
(4) the last four digits of the debit and credit card number.” Ill. Sup. Ct. R. 138(b)(c)(emphasis mine)
Rule 138 only applies to something that was filed with the circuit clerk of court. Exchanged discovery does NOT get filed.
“No discovery may be filed with the clerk of the circuit court except by order of court. Local rules shall not require the filing of discovery.” Ill. Sup. Ct. R. 201(m)
The good news is that if your opponent thought they could get away with redacting discovery…you are dealing with an idiot. Redacting is essentially admitting that they have relevant information that is so harmful to their case that they blacked it out and begged you to focus all your attention on that information. To learn more about how discovery is actually supposed to work in an Illinois divorce case, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
