Using discovery in a lawsuit
Discovery is part of a lawsuit. It is a way for one party to find out information about the case from the other party before the trial.
- 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, so each party can make requests, but will also have to respond to requests.
Limitations on discovery in certain cases
Some cases do not have normal discovery. This includes cases for between $10,001 and $50,000, and most cases where the parties have to go to arbitration first. In these cases, the parties have to tell each other the following things:
- Facts they know about the case
- Legal arguments they want to make
- Names of witnesses and people who have given statements
- Calculation of damages
- A description of documents or objects relevant to the case
This must happen within 120 days of the day the defendant files their answer. The parties must also include an affidavit saying that they are following the rules about the information they have to give 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 are written questions that one party sends to the other about a case. The other party is required to answer these questions. A party can only send 30 interrogatories to the other party, unless the other party agrees to have more, or the court allows for more.
If there is more than one other party in the case, a party sending interrogatories must give the other parties copies of the interrogatories. 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 a party in a lawsuit asks the other party to give them papers and property that are relevant to the case so they can inspect them. This could also include giving access to a building for inspection.
The party making this request has to include the time that the response is due, but this has to be no less than 28 days. The party who receives the request has to copy the documents like they are normally kept. If there is more than one other party in the case, a party sending a request to produce must give the other parties a copy.
For information stored electronically, the party making the request must specify what form they want the information in. For example, the form of the information could be as an attachment in an e-mail, or information printed on paper.
Requests to admit
A request to admit is when a party asks another party to admit that certain facts are true or that certain documents are genuine. The party that gets this request must admit or deny each fact or document by sworn statement, or object, within 28 days of receiving the request.
Note: If the 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 for more.
Depositions are interviews where one party asks someone questions under oath about the case.
Depositions can be taken for the purpose of discovery or evidence. A deposition used for discovery is a way for the party to find out more about the facts of the case. A deposition used for evidence is a way to get statements so that they can be used in trial.
If one party gives notice of a deposition without specifying if it is for discovery or evidence purposes, it will be considered for discovery purposes.
Depositions cannot last longer than 3 hours, unless the parties agree, or good cause is shown. This means that the party has to have a good reason for extending the deposition beyond 3 hours.
Depositions can either be recorded or taken remotely and electronically. Depositions occur in the county where the party requesting it lives, works, or does business in. 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 for the fees related to the deposition.
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 be deposed, but only after being identified as witnesses who will testify at trial.
If a party doesn't answer requests in discovery
The parties in a lawsuit 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, the parties can ask the court to decide who wins the discovery disagreement.
If a judge decides that a person didn't have a good reason for not responding to a discovery request, they can order penalties, or sanctions, against that person. Sanctions for not complying with discovery include: