Posted on September 4, 2022

What Must Be Filed Regarding Discovery In An Illinois Divorce

Illinois divorce law can be confusing. The most confusing element of the Illinois divorce process is probably the discovery process.

Discovery is the “compulsory disclosure, at a party’s request, of information that relates to the litigation” Black’s Law Dictionary (11th ed. 2019)

Discovery is largely accomplished through a variety of different discovery requests: notices to produce, interrogatories, requests to admit, depositions, subpoenas, etc.

The opposing sides in Illinois litigation are expected to resolve discovery amongst themselves without the court’s help.

“Cooperation between counsel and good-faith efforts by them to resolve disputes without judicial intervention are essential to the efficient and expeditious administration of justice in this State” Spiller v. Continental Tube Co., 447 NE 2d 834 – Ill: Supreme Court 1983

This makes sense. There is no way that a court could adequately resolve disputes about fundamental issues to a case and supervise the most tedious, time-sucking task: discovery.

The only discovery a court wants to see are the final exhibits which will be proffered at hearing or trial.

So, what if anything should be filed regarding discovery in Illinois?

There is a temptation to file everything in an Illinois divorce. After all, that preserves the record for possible appeal.

“Pleadings subsequent to the complaint, written motions, and other documents required to be filed shall be filed with the clerk with a certificate of counsel or other proof that the documents have been served on all parties who have appeared” Ill. Sup. Ct. R. 104(b)

This “file everything” policy does NOT apply to discovery.

“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)

Discovery has a LOT of private information and anything that is in an Illinois court file is automatically made available to the public.

“All records, dockets and books required by law to be kept by such clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in different clerks’ offices and shall have the right to take memoranda and abstracts thereof.” 750 ILCS 105/16(6)

How can you prove to the court that you served a discovery request on the opposing counsel if and when the opposing counsel?

You can just show the court a copy of the discovery request. Discovery requests are all done by email so the date sent and the receiver will be certain.

“[D]ocuments shall be served electronically.(1) Electronic service may be made(i) Through an approved electronic filing service provider, (EFSP) or,(ii) to the e-mail address(es) identified by the party’s appearance in the matter. If service is made by e-mail, the documents may be transmitted via attachment or by providing a link within the body of the e-mail that will allow the party to download the document.” Ill. Sup. Ct. R. 11(c)

Discovery requests via email will be considered properly delivered unless they bounce back.

“If a party serving a document via e-mail receives a rejection message or similar notification suggesting that transmission was not successful, the party serving the document shall make a good-faith effort to alert the intended recipient of a potential transmission problem and take reasonable steps to ensure actual service of the document.” Ill. Sup. Ct. R. 11(d)

Despite email being a fool-proof way to verify receipt of documents, notices of service and answer of discovery are required to be filed in an Illinois divorce.

“Any party serving discovery shall file a certificate of service of discovery document.” Ill. Sup. Ct. R. 201(m)

So, you are supposed to file a certificate of service of the discovery request and then the other party is supposed to file a subsequent certificate of service that they answered discovery.

A certificate of service of discovery is a signed attestation that the discovery was served or answered. “[W]henever in this Code any…return or proof of service…is required or permitted to be verified, or made, sworn to or verified under oath, such requirement or permission is hereby defined to include a certification of such pleading, affidavit or other document under penalty of perjury as provided in this Section.” 735 ILCS 5/1-109(a)

So, not only are you supposed to serve discovery requests or answers, you are required to swear that you did so. Does this seem excessive? Oh well, the rules are the rules.

In reality, filing a certificate of service doesn’t consistently happen…because it is pointless in the wake of email.

What happens if a certificate of service is not filed and the party of whom discovery is requested objects to the discovery request on that basis.

It will be up to the judge to enforce Illinois Supreme Court rule 201(m)’s requirement of filing a certificate of service. I suspect most judges have the same opinion that I do: 201(m) is duplicative notice of the actual discovery request.

The point of Illinois Supreme Court Rule 201(m) is to be sure that the opposing side is on notice of your discovery request and that there is a public record of the discovery requests existence if not substance. Even if the recipient of the discovery request missed the discovery request, the rules still require a reminder in the form of a 201(k) conference.

If a certificate of service was not filed…so what? You have already given notice of the request twice.

“[S]ome notice, however informal, is greatly to be preferred to none at all.” (Internal quotation marks omitted.) Nagel v. Gerald Dennen & Co., 272 Ill. App. 3d 516, 521 (1995)

It has been held that even a phone call is good notice.

“Informal, telephonic notice has been recognized as sufficient notice.” Amer. Warehousing Services v. Weitzman, 169 Ill. App. 3d 708, 715 (Ill. App. Ct. 1988)

Even having a working relationship with opposing counsel (rare for some divorce attorneys) can ease the notice requirements as “[s]uch informal notice is particularly required when the parties or their attorneys are familiar with one another, have engaged in discussions, and are able to appear in court within minutes” Quigg v. Saleem, 2022 IL App (4th) 220720

In sum, quit arguing about certificates of service and just answer discovery or file an objection to discovery.

What if someone does file sensitive discovery documents in an Illinois divorce?

Just ask the court to order the circuit clerk to expunge or seal those documents in the court file.

What if you’ll need discovery documents in an appeal?

If the discovery documents are so important that you think they’ll impact an appeals court’s decision, you must ask the court for leave to include the documents in the court file despite Rule 201(m)’s bar on filing discovery.

For a “court to consider these documents upon review, she should have moved for leave to file them with the circuit court, as is permitted under Supreme Court Rule 201(m), so that the documents would have been included in the record on appeal.” Harris v. Old Kent Bank, 735 NE 2d 758 – Ill: Appellate Court, 2nd Dist. 2000

If you want to hire an attorney who enjoys pondering subclauses of the Illinois Supreme Court Rules, contact my Chicago, Illinois family law firm to ask about or debate the rules…it’s my pleasure.

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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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