Article - Getting the most out of Your  Discovery Tools
              by David S. Kerpel

In the harsh realm of the law, discovery tools, not dogs, are your best friends. As your best friend, you should know everything there is to know about discovery. Wouldn't it be nice to know every single
discovery rule, and procedure, and the legislative intent, the case law and the history of each discovery rule? Well, this article doesn't cover these issues. Instead, it takes a clear-cut look at the most useful discovery tools available to obtain the most essential information in your case.

The following discovery outline will serve as a helpful reference to assist you in your never-ending quest for information. I have listed your discovery tools in the procedural order which may be most helpful, along with some helpful hints and strategies to best utilize your tools.

Your discovery toolbox should include the following tools:'

  1. Illinois Supreme Court Rule 214 Notice to Produce: Make sure you serve this document
    request at the initial stage of your case. Your opponent has 28 days in which to respond or object. They must also supplement all prior discovery. You may need to petition the Court to insure that full and complete document production is provided.

    Enforcement Hints:

    A. Illinois Supreme Court Rule 201(k): Before Petitioning the Court to enforce your prior discovery request, you must follow Supreme Court Rule 201(k) and make an attempt to work out discovery issues outside the court room. Therefore, on the 29th day after you have served your discovery request, write a brief letter to the opposing attorney, reminding them that their discovery is due, that you require full compliance and that you are willing to meet for a discovery conference or to discuss any questions or issues they may have regarding your discovery request. Give them 7-10 days to respond to your letter and make another request by phone to them in that time. If they still fail to respond, take the next step.

    B. Motion to Compel Discovery Production: File a Motion to Compel Discovery Production if they fail to respond to your 201(k) letter. It is essential that you have an order entered at your hearing setting forth a specific compliance deadline date. If they fail to provide the documents, take the next step.

    C. Illinois Supreme Court Rule 219(c): File a Motion for Sanctions if they fail to comply with the previous court order(s) compelling discovery compliance. Rule 219(c) allows sanctions ranging from monetary sanctions such as attorneys fees, to barring witness testimony or barring evidence from being introduced at trial. You must make sure that if you are requesting extreme relief, the relief is justified by the actions of


  2. Illinois Supreme Court Rule 213 Interrogatories:
    These are written questions which must be responded or objected to within 28 days. These provide an excellent resource to obtain specific information about all aspects of your case. The only negative aspect of interrogatories is that you cannot ask follow-up questions to the written answers until a deposition or hearing. If you are served with interrogatories, remember that you may produce documents or refer to previously produced documents in response to any of the interrogatories. See Rule 213(e). You also have a duty to supplement all information originally provided in your Answers to Interrogatories. See Rule 213(i).

    A. Custom-made Interrogatories: Must be less than 30, including sub-parts, unless approved by the court for good cause shown.

    B. Standard Interrogatories: Illinois Supreme Court Rule 213(j) provides standard forms of interrogatories for difference classes of cases (Medical Malpractice, Motor Vehicle, Personal Injury and Matrimonial).

    Enforcement Hints: Same as 214 Notice to Produce

  3. Illinois Supreme Court Rule 216 Requests to Admit Facts or the Genuineness of Documents:
    This discovery tool is most useful for saving trial time and eliminating the necessity to call certain witnesses to authenticate documents or testify as to the truth/credibility of certain facts.

    Helpful Hints: Once a Request for Admission of Fact or for Genuineness of Documents is served on the other party, they have 28 days to deny or object to the genuineness of that document or fact. If they fail to deny or object, then that fact or document is deemed to be admitted.
  4. Illinois Supreme Court Rule 204(a)(4) Record Subpoenas:
    One of the most cost-efficient and comprehensive discovery tools available; but, what do you subpoena when a party has failed to respond to Rule 213 and 214 discovery requests?

    A. Subpoena credit cards, bank account and financial institutions where the party has accounts. You can usually obtain this information from your client.

    B. Subpoena employment records for income information. There are often summaries of assets and income history prepared by the party when first applying for his job. This information can lead you to other entities to subpoena.

    C. Review tax returns- specifically Schedule B for dividends and interest income. Subpoena the brokerage houses and banking institutions listed. For banks, besides bank accounts and monthly statements, ask for all loan documents. If you receive credit applications, you can subpoena other lending institutions, other banks and additional entities from the credit applications you receive.

    Helpful Hints:

    • In divorce cases: If finances are not a problem, start sending record subpoenas out immediately. If your client does not have access to significant income or assets, send subpoenas out the moment the 28 days expire for your Rule 214 request. This way, you will have a better chance of collecting payment for these discovery expenses, since that party failed to comply with your Rule 214 request.

    • Banks:  Always ask for records pertaining to any safe deposit boxes. You can obtain the log records and determine when and how often a party has visited their box. You can also determine whether you need to petition the court to freeze access to a safe deposit box, based on the amount of activity and who has control over the safe deposit box.

    • Credit cards: Always ask for the credit application and proof of all payments made. You can obtain additional information from the credit applications. The copies of checks used to pay the monthly bills will lead you to the party's banking institutions.

    • To obtain your records as quickly as possible, call the entity you are subpoenaing before issuing the subpoena to confirm the exact location to send the subpoena. Be sure to obtain a phone number so you can call back to get status reports on the requested documents.
    • Keep a chart of all entities you subpoena to save time in the future. Keep track of addresses, phone numbers, and contact names.


  5. Illinois Supreme Court Rule 237(b):
    Requires a party to appear at a hearing or trial and to bring documents to said hearing or trial. This tool should be used when the client has failed to produce certain documents which are essential to the pending pleadings set for hearing.

    Helpful Hints:
    • This discovery tool cannot be used in place of Illinois Supreme Court Rule 214. This means that you must have a 214 Notice to Produce in place prior to filing the Rule 237 document request. Many attorneys try to get around this by filing a Rule 214 document request at the same time, or just a few days prior to a Rule 237(b) document request. This may be open to a Motion to Strike since, under Rule 214, you are provided 28 days to respond. Unless the hearing or trial is 28 days away from the time you serve the Rule 214 request, you may not be able to obtain your documents by Rule 237.
    • Be sure to serve this request at least five to seven days prior to the hearing to allow the other party an opportunity to locate and produce the documents at the hearing. If you wait until two or three days prior, the other party may complain that there was insufficient notice. However, you can then pursue the counter-argument that they have had notice of the requested documents from the time you first filed your 214 Notice to Produce.
  6. Illinois Supreme Court Rule 206 Discovery Depositions:
    Probably the most popular and extensive discovery tool.

    Helpful Hints:

    • I recommend taking a deposition only after you have reviewed discovery obtained by the aforementioned discovery tools, so you are fully informed as to the central issues in your case.
    • Send Notice to the other attorney concerning the time and place of the deposition and the name and address of the deponent. See Rule 206(a).
    • The deposition is limited to three (3) hours in duration unless stipulated by the parties or extended by order of the court upon a showing of good cause. See Rule 206(d).
    • Attach a rider to the subpoena or the Notice for Deposition which requests any and all documents you need from the deponent. See Rule 204(a).

These are the most helpful tools to have in your tool-box of discovery. As with all tools, the more practice you have, the more proficient you become. Learn to use your tools of discovery and you will have nothing to fear when you are faced with an attorney on the other side who refuses to comply with your Rule 213 or 214 discovery requests.






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