In any legal case involving litigation, whether that is in civil court or criminal court, the parties to the case may present evidence of their claims to back up their positions. The process of gathering and sharing evidence with the parties and with the court is exceedingly important. This process is called discovery.
Key Takeaways
During the discovery process, the parties may submit requests to each other and to third parties for information and various materials that they intend to use as evidence during the course of the trial. The requests for information that discovery contemplates are to be made in advance of the trial date. This allows for the parties to appropriately respond to such requests by having enough time to gather, organize, redact, and submit their requested answers and documents.
Discovery is defined in the Illinois Compiled Statutes as including “admissions of fact and of genuineness of documents, physical and mental examinations of parties and other persons, the taking of any depositions, and interrogatories.” So, it is important to understand that discovery does not refer to the evidence itself but rather to the process of obtaining the evidence.
The following is a list of examples of the types of evidence-gathering methods that the discovery process facilitates:
- Requests to Produce
- Requests to Admit
- Sending written interrogatories
- Taking sworn depositions
Some of the types of evidence that may be gathered are listed below:
- Bank statements and itemized receipts
- Phone logs
- Text logs
- Copies of contracts
- Copies of wills
- Photos and video
The Illinois Compiled Statutes explain that “a copy of any discovery request under these rules to any nonparty shall be filed with the clerk in accord with Rule 104(b).” Examples of discovery requests to nonparties can be found below:
- Access to security camera footage
- Interrogatories asking to corroborate information
- Depositions of nonparty witnesses
Rule 201 of the Illinois Compiled Statutes contemplates, among other things, the following:
- Discovery Methods
- Scope of Discovery
- The Time Discovery May Be Initiated
- Sequence of Discovery
- Diligence in Discovery
- Stipulations
- Effect of Discovery Disclosure
- Reasonable Attempt to Resolve Differences Required
- Filing Materials with the Clerk of the Circuit Court
- Claims of Privilege
- Filing of Discovery Requests to Nonparties
- Asserting Privilege or Work Product Following Discovery Disclosure
What is a Discovery Motion?
To put it simply, there are many types of motions that can be filed as part of the discovery process. Ideally, there should not need to be because, for discovery, attorneys will typically send requests for information rather than a motion related to the discovery. Courts don’t always look favorably on the issuance of motions for discovery because they “believe that parties can and should work out most discovery disputes and thus [they] discourage the filing of discovery motions,” according to the U.S. District Court for the Northern District of Illinois, for example.
Attorneys will issue requests for information such as the Rule 213 Written Interrogatories to Parties. Questions will be sent to a party and they will need to submit sworn responses. If they fail to do so, various types of motions for discovery may be filed to ensure they comply by a certain deadline.
Some examples of motions for discovery include:
Motion to Compel Discovery
A motion to compel discovery occurs when the opposing side has either ignored or refused requests to produce certain materials such as bank statements, call logs, and the like. If they are continuously stymying the process and preventing the other side from acquiring the necessary information and evidence that may be needed in order to put together a compelling, or more importantly, a thorough case, then they may be compelled by the court to produce such information and evidence after a motion to compel discovery has been filed by the party making the request.
Motion for Leave to Supplement Discovery
A motion for leave to supplement discovery may be necessary when a party realizes that they have not received exactly what they had requested or when new information comes to light after the initial discovery requests have already been answered.
Motion to Extend the Discovery Deadline
A motion to extend the discovery deadline may become needed when there are various factors holding up the process. It may be that one party to a suit is working on obtaining the necessary materials, such as bank statements of phone logs, for example, and they are awaiting a third party to provide them with what they need to be able to either answer a request or get a picture of what they may want to ask for from the other side.
Motion for leave to conduct discovery on a third party to determine whether they are a proper party
Sometimes, a third party will attempt to join a case part of the way through, and the attorneys will want to request permission from the court to conduct a thorough investigation of whether the third party is a permissible addition as either a plaintiff or a defendant.
In Conclusion
The discovery process is essential during the course of litigation. It is typically done by agreement between the parties to exchange information which may be needed. But, if a breakdown in communication occurs and one side is holding out, different types of motions may be needed to facilitate discovery.
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