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Kevin O'Flaherty

Grasping the nuances of the written discovery phase in a civil lawsuit within Illinois is crucial for steering through the litigation process. This stage consists of methodical exchanges, including written interrogatories, document requests, and admissions demands. Navigating this period effectively can greatly influence the outcome at trial or lead to an advantageous settlement. It’s important to note that adherence to precise deadlines is mandatory. Typically, parties have 28 days to respond. Our comprehensive guide elucidates these processes so you can approach this critical phase with vigilance and tactical acumen.

Key Takeaways

  • Discovery phase in Illinois civil litigation is key for evidence gathering and strategy, requiring attorney-client collaboration.
  • Written discovery tools help extract facts and prepare for oral discovery, governed by specific response rules and limits.
  • Effective objection management and strategic Motions to Compel are crucial in discovery disputes, ensuring compliance and document management.

What is written discovery in Illinois?

In Illinois, the process of written discovery encompasses several forms such as written interrogatories, documents requests for production, admissions requests regarding facts, and party subpoenas directed to third parties. This mechanism permits parties involved in litigation to solicit information from one another using structured written questions and specific document requests.

Despite what many television programs portray, only about 0.6% of civil cases actually make it to the trial phase.[1]  So, what is your attorney doing the rest of the time?  Simply put: discovery.  

‍Your attorney’s job is to literally discover how strong or weak your case is, and how to proceed from there.  In order to do that, your attorney has to do a considerable amount of research.  And, we’re not talking legal research here, I mean factual research. 

‍Your attorney has to uncover as much as he or she possibly can about you, your adversary, and the situation leading to you hiring an attorney to determine what course of action is best for you.  The vast majority of civil cases settle during this discovery phase because one side or other comes across facts that tell the attorney the client would be unlikely to win at trial.  So, how does this whole process begin?

Civil Litigation begins with the filing of a Complaint in the appropriate court (we will discuss how to determine which court is appropriate in subsequent articles on Jurisdiction and Venue).  In the Complaint, the Plaintiff alleges the facts that underlie his or her claim against the Defendant and requests damages or other relief from the court. 

Once the Complaint is on file and the Defendant is served with a summons (i.e., notice that the Complaint was filed), the Defendant is given the opportunity to respond to the Plaintiff’s allegations.  Assuming that the Complaint survives any Motion to Dismiss filed by the defendant, the Defendant will file an answer to the allegations of the Complaint.  Once the Complaint has been answered, the case is “at issue” and the discovery phase of litigation begins.

What happens during the discovery phase of litigation?

In the discovery phase, the involved parties reciprocally share information and proof relevant to their respective cases. This process facilitates a mutual understanding of each other’s assertions with the aim of possibly achieving a settlement prior to proceeding to trial.

The first step of this phase is to issue written discovery.  Written discovery consists of four primary types of documents: (1) written interrogatories; (2) requests for production of documents; (3) requests for admission of facts; and (4) third party subpoenas.

  • Written interrogatories are written questions to the opposing party, to which that party must respond in writing.
  • Requests for production of documents are requests for the opposing party to make available to the requestor certain documents in its possession.
  • Requests for admission of facts are requests for the opposing party to admit or deny certain facts, or the validity of certain documents.
  • Third party subpoenas are written interrogatories and requests for production of documents issued to people and organizations that are NOT parties to the lawsuit.

Typically, each side will initially object to certain interrogatories and requests for production, on one of the following bases:

  • that the discovery request seeks information that is not relevant to the case;
  • that the discovery request is overly broad (i.e., not narrowly tailored to discovering only relevant information);
  • that the discovery request is unduly burdensome (i.e., the burden of gathering the information sufficiently outweighs the relevance of the information); or
  • that the requested information is subject to attorney/client or some other privilege.

‍An objecting party will often withhold the information that it claims is not discoverable.  If the requesting party feels that the other side’s objection is meritless, or if the other side fails to timely produce the requested information or documents, the requesting party must send a letter to the party that it believes is wrongfully withholding information or documents in an effort to resolve discovery objections outside of court.  This letter should detail the deficiencies in the other party’s discovery responses, explain why such responses are deficient, and request that the withholding party supplement its deficient answers within a specified time period.

If, after this time period expires, the parties are not able to work out their discovery differences, the requesting party is entitled to file a Motion to Compel Discovery.  Both Illinois and Indiana law require that the parties attempt to work out their discovery differences outside of court before a Motion to Compel will be granted.  If the judge grants a Motion to Compel, he or she will order the answering party to answer the requesting party’s discovery more appropriately or fully, and may assess attorney fees expended by the requesting party to obtain such information.  If the answering party fails to appropriately respond within the time period established by the court, the answering party will be held in contempt.

What happens if a party does not comply with a discovery request?

Should a party fail to adhere to a request for discovery, the opposing side has the option to submit a Motion to Compel Discovery. Continuing noncompliance can lead the court to impose sanctions on that party, which could include penalties such as fines, adverse inferences or even judgment in favor of the other side.

As new information comes to light throughout the course of the written discovery phase, each side will issue a second or third set of interrogatories and production requests is necessary.

Both sides will usually wait for complete and satisfactory answers to their written discovery requests and subpoenas before scheduling depositions.  The reason for this is twofold.  First, depositions are expensive, and free written discovery allows us to narrow our focus in order to lessen their cost.  Second, complete written discovery is a useful tool to keep the deponent from evading complete answers in his or her deposition.

The written discovery phase can range from two months to longer than a year, depending on the complexity of the litigation and the willingness of the opposing sides to cooperate with one another.  Although a lengthy discovery phase can be frustrating to litigants, thorough discovery is an important step to assembling a winning case.   Assuming competent lawyers on both sides, most cases are won or lost based mostly on the facts that come to light during written and oral discovery.

Frequently Asked Questions

What are the 3 types of discovery?

The three types of discovery are written discovery, document production, and depositions, with disclosure achieved through the methodical process of “discovery.”

Why is it important to complete written discovery before taking depositions?

Before proceeding with taking depositions, it is crucial to finalize the written discovery process. This step equips lawyers with the necessary information to construct precise questions and steer their deposition strategy efficiently, which may decrease both the quantity of depositions required and related expenses.

[1] Brian J. Ostrom, Ph.D. et. al., Examining Trial Trends in State Courts: 1976-2002, 1 Journal of Empirical Legal Studies 768 (2004)

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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