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What is Discovery in an Illinois Divorce?
Discovery is the process through which attorneys and litigants, prior to a trial, obtain information about the case they are involved in.
“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 relevant information that each party needs to best prosecute their own divorce case is often held by the opposing party or some third party or parties.
There are a variety of different ways to request discovery from the opposing party or some other third parties: Notices to produce, financial affidavits, interrogatories, depositions, subpoenas, etc. Discovery is largely governed by the Illinois Supreme Court Rules.
“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)
The parties to a divorce can use these various tools in any particular order or timing sequence that they see fit.
“Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery shall not operate to delay any other party’s discovery.” Ill. Sup. Ct. R. 201(n)
Each of the allowed discovery methods has their own rules and timing considerations. I discuss them all in other articles contained on my site.
Likewise, the party tendering discovery to the requester may deliver it directly to the requester. The tenderer shall NOT file discovery with the court but rather file a notice that they served the discovery upon the requester.
“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. Any party serving discovery shall file a certificate of service of discovery document.” Ill. Sup. Ct. R. 201(m)
All discovery in an Illinois divorce case share some common principles.
“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)
Every case is different so each judge is allowed to supervise discovery broadly according to the Illinois Supreme Court Rules. The Illinois Supreme Court Rules are purposefully broad.
“It would be difficult, if not impossible, to formulate provisions to specifically cover the infinite variety of circumstances in which discovery is indispensable to the expeditious determination of the controversy in accordance with the substantive rights of the parties.” Sarver v. Barrett Ace Hardware, 63 Ill. 2d 454, 462 (Ill. 1976)
For this reason “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)
“[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
When discovery is requested (also known as “served”) on someone. They have a duty to respond to their fullest ability.
“Illinois recognizes a general duty to disclose.” Dameron v. Mercy Hosp. & Med. Ctr., Docket No. 125219, 6 (Ill. 2020)
Knowing that the standard rule is “everything is discoverable,” the real question is how can a party who is being requested to produce discovery can object to discovery requests they believe are inappropriate?
Relevancy And Discovery In An Illinois Divorce
If the subject matter of the discovery has nothing to do with the controversy being resolved by an Illinois court, the party receiving the discovery may object due to lack of relevancy.
“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)
An irrelevant discovery request is difficult to establish because relevancy for discovery is not defined as relevant evidence. Relevant discovery requests include requests that might lead to the discovery of relevant evidence.
“[T]he scope of information considered “relevant” under this court’s discovery rules is expansive, including not only evidence that would itself be admissible at trial, but also information leading to the discovery of admissible evidence…The concept of relevance facilitates trial preparation while safeguarding against improper and abusive discovery.” Kunkel v. Walton, 179 Ill. 2d 519, 531 (Ill. 1997)
Even if a discovery request is relevant or may lead to relevant evidence, the court may still deny the request if it’s overly burdensome to the requested party. Usually the burden can be mitigated by a protective order which limits the discovery in some way. For example, a court could order: “Respondent to tender electronic bank statements and is excused from tendering physical bank books at this time.”
“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)
Most relevancy objections are based on the fact that the information has already in whole or in part been tendered and is therefore a subsequently irrelevant and unnecessary burden on the requester.
“Duplication of discovery methods to obtain the same information and discovery requests that are disproportionate in terms of burden or expense should be avoided.” Ill. Sup. Ct. R. 201(a)
Still, how do we know the discovery will be duplicative or irrelevant until we’ve seen it?
Privilege and Discovery In an Illinois Divorce Case
Relevance is a weak objection to a discovery request. The only way that discovery, if requested, shall not be tendered is if that information is privileged. An objection must be made stating the legal basis for not turning over the requested information
“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)
Anything an attorney has done for a client will be considered privileged and thus, not discoverable.
“All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” Ill. Sup. Ct. R. 201(b)(2)
Doctors, similarly, cannot disclose anything about their patients.
“No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient” 735 ILCS 5/8-802
Neither can therapists divulge information about their patients.
“[A] recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications.” 740 ILCS 110/10
CPAs, Clergy and a Husband or Wife are also not allowed disclose information without the relevant party’s approval.
All privileged can be waived only by the party about whom the information is about.
Protective Orders and Discovery In An Illinois Divorce
Almost all objections except privilege can be mostly overcome with a well crafted protective order.
“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)
An Illinois “court [can issue] an appropriate protective order to prevent the [files] in question or confidential information about them from being disseminated to the public, yet still have permitted plaintiff the full disclosure to which he is entitled.” Sloan v. Jasper County Community Unit School District No. 1, 167 Ill. App. 3d 867 (1988)
Instead of a blanket denial, a court can merely limit the discovery request for the time being and revisit the request later if anything juicy gets discovered.
“[T]rial courts can restrict pretrial discovery where probative value is lacking.” In re Marriage of Schaefer, 161 Ill. App. 3d 841, 849 (Ill. App. Ct. 1987)
If discovery gets really intense, the judge can directly involve themselves in each requested document or item
“Upon the motion of any party or witness, on notice to all parties, or on its own initiative without notice, the court may supervise all or any part of any discovery procedure.” Ill. Sup. Ct. R. 201(c)(2)
If the court is supervising your discovery in an Illinois divorce case, something has gone terribly wrong.
Resolving Discovery Disputes
All of the above listed issues or objections to discovery requests must be discussed and resolved amongst the parties in advance of bringing the matters before a judge.
“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)
This means the attorneys must email, call or write each other making a “reasonable attempt to resolve differences.” Any writing doing so will be memorialized by the words “pursuant to Illinois Supreme Court Rule 201(k)“
If the conference was unsuccessful, the requesting party may file a motion to compel production of discovery.
“Rule 201(k) requires that every motion made with respect to discovery shall incorporate a statement that the parties have been unable to reach an accord even after personal consultation and reasonable attempts to resolve differences.” Simmons v. Shimek, 139 Ill. App. 3d 927, 929 (Ill. App. Ct. 1985)
“Strict compliance with Rule 201(k) is generally required and litigants are not entitled to seek sanctions without first exercising reasonable attempts to resolve discovery differences.” In re Estate of Andernovics, 197 Ill. 2d 500, 512 (Ill. 2001)
201(k) conferences are no longer required when a party is seeking compliance with court-ordered discovery.
“[O]nce the court does become involved in the supervision of discovery matters,…at the progress-call hearing and subsequently through the entry of orders, such goals [of cooperation in lieu of litigation] are no longer served by requiring mandatory compliance with Rule 201(k)” Gayton v. Levi, 146 Ill. App. 3d 142, 150 (Ill. App. Ct. 1986)
Failure To Comply With Discovery In An Illinois Divorce Case
The refusal to cooperate with reasonable discovery requests can have grave consequences. Usually, it’s just an order to comply and attorney’s fees for the expense of the enforcement.
“If a party or other deponent refuses to answer any written question upon the taking of his or her deposition or if a party fails to answer any interrogatory served upon him or her, or to comply with a request for the production of documents or tangible things or inspection of real property, the proponent of the question or interrogatory or the party serving the request may on like notice move for an order compelling an answer or compliance with the request. If the court finds that the refusal or failure 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)
Beyond attorney’s fees, the court can take extreme measures when a party fails to comply with reasonable discovery requests.
“If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision of…the discovery 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:
(i) That further proceedings be stayed until the order or rule is complied with;
(ii) That the offending party be debarred from filing any other pleading relating to any issue to which the refusal or failure relates;
(iii) That the offending party be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue;
(iv) That a witness be barred from testifying concerning that issue;
(v) 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;
(vi) 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(b)
This means that your divorce could be frozen until further compliance, your divorce or requests contained in your divorce may be thrown out or your ability to present evidence could be limited at trial. The possibilities for punishment are endless. “It is within the trial court’s discretion to weigh the equities and make the final determination with respect to discovery orders.” Yassin v. Certified Grocers of Illinois, Inc., 502 N.E.2d 315, 326-27 (111. App. Ct. 1986)
Timing And The Discovery Process In An Illinois Divorce
A court will from time to time oversee discovery at various status dates and pre-trial conferences.
“Except as provided by local circuit court rule,…the court shall hold a case management conference…At the conference counsel familiar with the case and authorized to act shall appear and the following shall be considered:
(5) limitations on discovery including:
(i) the number and duration of depositions which may be taken;
(ii) the area of expertise and the number of expert witnesses who may be called; and
(iii) deadlines for the disclosure of witnesses and the completion of written discovery and depositions” Ill. Sup. Ct. R. 218
Timing is usually the biggest bar to discovery because sooner or later discovery will close and no more requests will be allowed.
“All dates set for the disclosure of witnesses, including rebuttal witnesses, and the completion of discovery shall be chosen to ensure that discovery will be completed not later than 60 days before the date on which the trial court reasonably anticipates that trial will commence, unless otherwise agreed by the parties. This rule is to be liberally construed to do substantial justice between and among the parties.” Ill. Sup. Ct. R. 218(c)
“After discovery closes, except as provided by Illinois Supreme Court Rules 213(i) and 214, no discovery shall be allowed except as specifically approved by order upon a showing of extraordinary circumstances.” Cook County Rule 13.4(g)
These discovery deadlines are crucial. They must be observed with great reverence. If discovery is still absent past a discovery deadline date motion for continuance must be filed as soon as possible.
To discuss your Illinois divorce or parentage case and the various discovery requirements, please contact our Chicago, Illinois office to schedule a free consultation with an experienced Illinois divorce and parentage attorney about your legal issues.