Using discovery in a lawsuit

Discovery is part of a lawsuit. It is a way for one party to find out information from the other party before the trial. 

Discovery includes: 

• Asking questions (interrogatories),
• Requesting documents (requests to produce),
• Asking the other side to admit to something (requests to admit), and 
• Interviewing people (depositions).

Discovery works both ways. Each party can make requests. Each party must also respond to requests. 

ILAO does not have any sample discovery forms. You may be able to find sample forms at a law library. For help finding the public law library closest to you, contact the Illinois Supreme Court Library at [email protected] or (217) 782-2424.

Limitations on discovery in certain cases

Some cases do not have normal discovery. This includes cases where the claim is between $10,001 and $50,000. It also includes most cases where the parties have to go to arbitration first. In these cases, the parties have to tell each other:

• Facts they know about the case,
• Legal arguments they want to make,
• Names of witnesses and people who have given statements,
• Calculation of damages, and
• A description of documents or objects relevant to the case.

This must happen within 120 days of the defendant filing their answer. The parties must also include an affidavit. In the affidavit, the party must say that it followed the rules when it provided the required information to the other side. 

Note: There is no discovery in small claims cases unless the court allows it. A small claim is a claim for $10,000 or less.

Interrogatories

Interrogatories are written questions that one party sends to the other. The receiving party is required to answer these questions under oath. A party can only send 30 interrogatories. However, this number can be increased if the other party agrees or the court allows more. 

If there is more than one other party in the case, the requesting party must give copies to all other parties. A party who receives interrogatories has 28 days to answer or object.

Standard interrogatories for car accidents, divorces, and medical malpractice are available on the Illinois Courts' website.

Requests to produce

A request to produce is when one party asks the other to provide relevant papers and property for inspection. This could also include a request for access to a building. 

The requesting party must include a due date for the response. This timeline cannot be less than 28 days. The party who receives the request must copy and provide the documents like they are normally kept. If there is more than one other party in the case, the requesting parting must also give the other parties a copy of the request.

For information stored electronically, the requesting party must specify the form of the information. For example, they can request the information as an attachment in an e-mail. They could also ask for the information to be printed on paper. 

Requests to admit

A request to admit is when one party asks the other to admit certain facts. One party can also ask the other to admit that certain documents are genuine. The party that receives this request must admit or deny each fact or document by sworn statement. The receiving party also has the option to object. The receiving party must take one of these actions within 28 days of receiving the request. 

Note: If the receiving party does not respond in time, the court will assume the statements are true, even if they're not. 

Only 30 requests to admit are allowed unless the court allows more.

Depositions

Depositions are interviews. One party asks someone questions about the case under oath. 

There are two types of depositions. One type is a deposition for discovery. This is a way for the party to find out more about the facts of the case. The second type is a deposition for evidence. This is a way to get statements that will later be used in the trial. 

If one party gives notice of deposition without specifying if it is for discovery or evidence, it will be considered for discovery purposes. 

Normally, depositions cannot last longer than 3 hours. However, the parties can agree to longer depositions. Additionally, the court may grant longer depositions if the party has a good reason for the extension. 

Depositions can either be recorded or taken remotely and electronically. Depositions occur in the county where the requesting party:

• Lives,
• Works, or
• Does business.

However, if a plaintiff requests a deposition, it may occur in the county where the case is heard in court.

The party that takes the deposition has to pay the related fees. 

When a party is deposed, they are sent a notice of deposition. Non-parties (those who aren't the plaintiff or defendant) are subpoenaed. Expert witnesses and treating physicians may also be deposed. However, these individuals must first be identified as witnesses who will testify at trial.

If a party doesn't answer requests in discovery

Parties sometimes disagree about whether a question or request is proper. The parties must try to solve these disagreements on their own. If that doesn't work, they can ask the court to make a decision.

If a judge decides that a person didn't have a good reason for not responding to a discovery request, the judge can order penalties, or sanctions, against that person. Sanctions for not complying with discovery include:

• Suspending the case,
• Not allowing a party to file future pleadings,
• Striking, or getting rid of, a claim, counterclaim, or defense,
• Not allowing a witness to testify, or
• A judgment.