A major component of litigation is the discovery process. This article is a guide to the basics of navigating through a process that oftentimes is the most time-consuming, most expensive, and most informational aspect of a case.
What Is Discovery in a Divorce?
In both parentage and divorce cases, the discovery of the other party’s income, assets, and liabilities is a crucial part of evaluating one’s case, preparing for hearings and trials, and being prepared for settlement discussions.
Additionally, discovery concerning potential trial witnesses is also an invaluable piece of the litigation process. In Illinois, discovery is generally governed by the Illinois Supreme Court Rules, but each county also has various discovery rules that supplement the Supreme Court Rules. The key rule for discovery procedure is that the information sought must be relevant.
A Look at the Discovery Process
The discovery process often begins with the drafting of a mandatory financial disclosure statement. In Cook County, this is called a "13.3.1 Disclosure Statement" because it is required by Cook County Local Rule 13.3.1. Lake, DuPage, McHenry, Will, and Kane counties also require parties to complete a financial disclosure statement at some point in the discovery process.
The disclosure statement is essentially a sworn affidavit, and it provides a glimpse into the financial aspects of a case. Each person that fills out a disclosure statement must list information such as income, expenses, liabilities, and assets (including bank accounts, stocks, retirement accounts, cars, real estate, other property of significant value, etc.).
Additionally, he/she must disclose whether he/she is involved in any court proceeding or lawsuit, whether he/she has sold or transferred any assets of significant value, and the types of insurance policies he or she has an interest in. In all divorce and parentage cases, the parties will exchange their disclosure statements at least once and will often be required to update their disclosure statement throughout the course of their case.
Standard written discovery most often consists of Interrogatories and a Request for Production of Documents, which together can be called “discovery requests.” These documents are requests for financial and witness information and are served upon the other party once the case has begun. Pursuant to the Illinois Supreme Court Rules, responses to discovery requests are due twenty-eight (28) days after they are served upon the other party.
Standard requests usually seek three years’ worth of information. Sometimes, however, information going back more than three years may be relevant, and therefore discoverable in a case. Conversely, where parties have only been married for a very short time, any discovery requests asking for information prior to the date of marriage are likely improper because they ask for irrelevant information.
Due to the comprehensive nature of the discovery process, clients often feel that the request for information and documents going back several years is burdensome and overwhelming. While this feeling is normal, it is important to comply with the discovery requests as thoroughly as possible in order to avoid unnecessary delay in your case
The best strategy for completing standard written discovery requests is to organize all documents that might be relevant to your case:
- Tax returns
- Bank account statements
- Retirement account statements
- Credit card statements
- Receipts for expenses, photos
Organizing these documents helps you to be thorough in answering all questions asked in the requests and to always provide more information than necessary. Once you provide your responses to your attorney, he/she will determine what should be produced in discovery to the opposing party and what information can be held back.
Interrogatories are written questions that are sent to an opposing party that must be answered by the opposing party in written form. In Illinois, standard matrimonial interrogatories contain numerous questions that pertain to the parties’ finances, assets, and liabilities and are often used by Illinois divorce attorneys to illicit information from an opposing party. The answers submitted must be signed and verified as true and correct by the answering party and are a crucial component to the discovery process in Illinois divorce cases.
A deposition is the oral examination of either a party or witness by an attorney. The deponent (or person giving the testimony) will typically give his or her deposition at the office of the attorney asking the questions or another agreed-upon location. The deponent is sworn in and under oath when answering questions and every word spoken at the deposition is transcribed by a court reporter, who is present throughout the examination.
Depositions are a highly effective tool for divorce attorneys in seeking and obtaining information pertinent to their case. Depositions are not only limited to the parties to a divorce but can also be used to elicit important testimony from experts, business partners, and other witnesses whose testimony is relevant to the pending divorce action.
Subpoenas for Documents
A subpoena for documentation (often referred to as a Subpoena Duces Tecum) is a document request sent by an attorney to an individual or business entity containing a list of documentation requested from that individual or business, attorneys are granted subpoena powers in the context of a divorce case and an effective divorce lawyer will take advantage of this by utilizing the power of the subpoena for documents to obtain crucial documentation from individuals or business entities. This can be a fabulous tool for a divorce attorney to obtain documentation that might not otherwise be obtainable perhaps because it was not available to the parties or was intentionally withheld by an opposing party.
Is Discovery Mandatory?
Failure to comply with discovery can result in substantial penalties to the non-complying party. Oftentimes, when one party fails to comply with the other’s discovery requests in a timely manner, that party may face court-imposed sanctions. This can include a monetary fine, payment of attorney’s fees, incarceration, the striking of pleadings, and/or an order of default against the party who failed to comply with discovery.
While these penalties are usually imposed in cases where a party wrongfully and willfully fails to produce complete responses to discovery, clients should always remember to be as thorough as possible in preparing their discovery responses in order to avoid any kind of delay stemming from failure to produce discovery.
Contact the Law Offices of Jonathan Merel, P.C.
If discovery is conducted properly, it can be a great tool for applying pressure to an opponent and obtaining favorable results for a client.
At the Law Offices of Jonathan Merel, P.C., we have extensive experience in the discovery process, the strategies behind conducting thorough discovery, how to apply pressure on one’s opponent through discovery, and how to work with our clients in order to produce thorough discovery responses. Contact us today!