Committee Comments

(Revised May 29, 2014)

Paragraph (b)

Paragraph (b), subparagraph (1) was amended to conform with the definition in newly added paragraph (b), subparagraph (4) and complies with the Federal Rules of Civil Procedure.

Paragraph (b), subparagraph (4) was added to provide a definition of electronically stored information that comports with the Federal Rule of Civil Procedure 34(a)(1)(a) and is intended to be flexible and expansive as technology changes.

Paragraph (c)

Subparagraph (3) was added to address the production of materials when benefits do not outweigh the burden of producing them, especially in the area of electronically stored information (“ESI”).

The proportionality analysis called for by subparagraph (3) often may indicate that the following categories of ESI should not be discoverable; (A) “deleted,” “slack,” “fragmented,” or “unallocated” data on hard drives; (B) random access memory (“RAM”) or other ephemeral data; (C) on-line access data; (D) data in metadata fields that are frequently updated automatically; (E) backup data that is substantially duplicative of data that is more accessible elsewhere; (F) legacy data; (G) information whose retrieval cannot be accomplished without substantial additional programming or without transforming it into another form before search and retrieval can be achieved; and (H) other forms of ESI whose preservation or production requires extraordinary affirmative measures. See Seventh Circuit Electronic Discovery Committee, “Principles Relating to the Discovery of Electronically Stored Information,” Principle 2.04(d). In other cases, however, the proportionality analysis may support the discovery of some of the types of ESI on this list. Moreover, this list is not static, since technological changes eventually might reduce the cost of producing some of these types of ESI. Subparagraph (3) requires a case-bycase analysis. If any party intends to request the preservation or production of potentially burdensome categories of ESI, then that intention should be addressed at the initial case management conference in accordance with Supreme Court Rule 218(a)(10) or as soon thereafter as practicable.

Paragraph (p)

This provision is referred to as the “clawback” provision and comports with the new Code of Ethics requirement that if an attorney receives privileged documents, he or she must notify the other side.

Committee Comments

October 24, 2012

Paragraph (m) was amended in 2012 to eliminate the filing of discovery with the clerk of the circuit court absent leave of court granted in individual cases based on limited circumstances. The rule is intended to minimize any invasion of privacy that a litigant may have by filing discovery in a public court file.

Committee Comments

( March 28, 2002)

Paragraph (l)

The words “special appearance,” which formerly appeared in paragraph (1) of Rule 201, were replaced in 2002 with the word “motion” in order to conform to changes in terminology in section 2-301of the Code of Civil Procedure (735 ILCS 5/2-301 (West 1998)).

Since the amendment to section 2-301 allows a party to file a combined motion, it is possible that discovery could proceed on issues other than the court’s jurisdiction over a party’s person prior to the court ruling on the objection to jurisdiction. While the court may allow discovery on issues other than the court’s jurisdiction over the person of the defendant prior to a ruling on the defendant’s objection to jurisdiction, it is expected that in most cases discovery would not be expanded by the court to other issues until the jurisdictional objection is ruled upon. It sometimes may be logical for the court to allow specific, requested discovery on other issues, for example, where a witness is about to die or leave the country, when the party requesting the additional discovery makes a prima facie showing that the party will suffer substantial injustice if the requested discovery is not allowed.

Paragraph (2) recognizes that discovery may proceed on other than jurisdictional issues before the court rules on the objecting party’s motion objecting to jurisdiction. Participation in discovery by the objecting party does not constitute a waiver by the objecting party’s challenge to jurisdiction.

Committee Comments

(Revised June 1, 1995)

Paragraph (a)

Paragraph (a) of this rule sets forth the four discovery methods provided for and cautions against duplication. The committee considered and discarded a provision requiring leave of court before a party could request by one discovery method information already obtained through another. The committee concluded that there are circumstances in which it is justifiable to require answers to the same or related questions by different types of discovery procedures but felt strongly that the rules should discourage time-wasting repetition; hence the provision that duplication should be avoided. This language is precatory but in the application of the medical examination rule, and in the determination of what is unreasonable annoyance under paragraph (c) of this rule, dealing with prevention of abuse, such a phrase has the beneficial effect of drawing particular attention to the question whether the information sought has already been made available to the party seeking it so that further discovery should be curtailed.

Paragraph (b)

Paragraph (b), subparagraph (1), sets forth generally the scope of discovery under the rules. The language “any matter relevant to the subject matter involved in the pending action” is the language presently employed in Federal Rule 26. The Federal rule also contains the sentence: “It is not ground for objection that the testimony will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” The Joint Committee Comments that accompanied former Illinois Rule 19-4 indicate that a similar sentence appearing in the pre-1970 Federal rule was deliberately omitted from the Illinois rule and suggest that perhaps the language “relating to the merits of the matter in litigation” was intended to limit discovery to evidence. This language was not construed in this restrictive fashion, however. (See Monier v. Chamberlain, 31 Ill. 2d 400, 202 N.E.2d 15 (1964), 66 Ill. App. 2d 472, 213 N.E.2d 425 (3d Dist. 1966), aff’d, 35 Ill. 2d 351, 221 N.E.2d 410 (1966); People ex rel. Terry v. Fisher, 12 Ill. 2d 231, 145 N.E.2d 588 (1957); Krupp v. Chicago Transit Authority, 8 Ill. 2d 37, 132 N.E.2d 532 (1956).) The only other effect the term “merits” could have would be to prevent discovery of information relating to jurisdiction, a result the committee thought undesirable. Accordingly, the phrase “relevant to the subject matter” was substituted for “relating to the merits of the matter in litigation” as more accurately reflecting the case law

The phrase “identity and location of persons having knowledge of relevant facts,” which appears in both former Rule 19-4 and Federal Rule 26, was retained. This language has been interpreted to require that the interrogating party frame his request in terms of some stated fact rather than simply in the language of the rule, because the use of the broad term “relevant facts” places on the answering party the undue burden of determining relevancy. See Reske v. Klein, 33 Ill. App. 2d 302, 305-06, 179 N.E.2d 415 (1st Dist. 1962); Fedors v. O’Brien, 39 Ill. App. 2d 407, 412-13, 188 N.E.2d 739 (1st Dist. 1963); Nelson v. Pals, 51 Ill. App. 2d 269, 273-75, 201 N.E.2d 187 (1st Dist. 1964); Grant v. Paluch, 61 Ill. App. 2d 247, 210 N.E.2d 35 (1st Dist. 1965).

The definition of “documents” in subparagraph (b)(1) has been expanded to include “all retrievable information in computer storage.” This amendment recognizes the increasing reliability on computer technology and thus obligates a party to produce on paper those relevant materials which have been stored electronically.

The first sentence of subparagraph (b)(2) is derived from the first sentence of former Rule 19-5(1). The second sentence was new. It constituted a restatement of the law on the subject of work product as it had developed in the cases decided over the previous decade. See Monier v. Chamberlain, 35 Ill. 2d 351, 221 N.E.2d 410 (1966), aff’g 66 Ill. App. 2d 472, 213 N.E.2d 425 (3d Dist. 1966); Stimpert v. Abdnour, 24 Ill. 2d 26, 179 N.E.2d 602 (1962); Day v. Illinois Power Co., 50 Ill. App. 2d 52, 199 N.E.2d 802 (5th Dist. 1964); Oberkircher v. Chicago Transit Authority, 41 Ill. App. 2d 68, 190 N.E.2d 170 (1st Dist. 3d Div. 1963); Haskell v. Siegmund, 28 Ill. App. 2d 1, 170 N.E.2d 393 (3d Dist. 1960); see also City of Chicago v. Harrison-Halsted Building Corp., 11 Ill. 2d 431, 435, 143 N.E.2d 40 (1957), and City of Chicago v. Shayne, 46 Ill. App. 2d 33, 40, 196 N.E.2d 521 (1st Dist. 1964). The final sentence of this subparagraph was new and is intended to prevent penalizing the diligent and rewarding the slothful.

Discovery of consultants as provided by Rule 201(b)(3) will be proper only in extraordinary cases. In general terms, the “exceptional circumstances” provision is designed to permit discovery of consultants only when it is “impracticable” for a party to otherwise obtain facts or opinions on the same subject. Discovery under the corresponding Federal provision, Rule 26(b)(4)(B) of the Federal Rules of Civil Procedure, has generally been understood as being appropriate, for example, in cases in which an item of physical evidence is no longer available because of destructive testing and the adversary’s consultant is the only source of information about the item, or in cases in which all the experts in a field have been retained by other parties and it is not possible for the party seeking discovery to obtain his or her own expert.

Paragraph (c)

Subparagraph (c)(1) covers the substance of former Rule 19-5(2). That rule listed a number of possible protective orders, ending with the catchall phrase, “or any other order which justice requires to protect party or deponent from annoyance, embarrassment, or oppression.” Subparagraph (c)(2) substitutes the language “denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” The list of possible discovery orders was deleted as unnecessary in view of the broader language of the new rule. The change in language is by way of clarification and was not intended to effect any change in the broad discretion to make protective orders that was provided by former Rule 19-5(2). See Stowers v. Carp, 29 Ill. App. 2d 52, 172 N.E.2d 370 (2d Dist. 1961).

Subparagraph (c)(2), like subparagraph (c)(1), is designed to clarify rather than change the Illinois practice. The committee was of the opinion that under certain circumstances it might be desirable for the trial court to direct that discovery proceed under its direct supervision, and that this practice might be unusual enough to call for special mention in the rule. The language was taken from section 3104 of the New York Civil Practice Act.

Paragraph (d)

Paragraph (d) of this rule makes it clear that except by order of court discovery procedures may not be initiated before the defendants have appeared or are required to appear. Former Rule 19-1 provided that depositions could not be taken before the defendants had appeared or were required to appear, and former Rule 19-11 made the time requirements for taking depositions applicable to the serving of interrogatories. The former rules, however, left the plaintiff free to serve notice at any time after the commencement of the action of the taking of a deposition, just as long as the taking was scheduled after the date on which the defendants were required to appear, a practice which the bar has found objectionable.

Paragraph (e)

Paragraph (e), as adopted in 1967, provided that unless otherwise ordered “depositions and other discovery procedures shall be conducted in the sequence in which they are noticed or otherwise initiated.” The effect of this provision was to give the last defendant served priority in discovery, since he could determine the date of his appearance. In 1978, this paragraph was amended to adopt the practice followed in the Federal courts since 1970, permitting all parties to proceed with discovery simultaneously unless the court orders otherwise. While empirical studies conducted preliminary to the proposals for amendment of the Federal discovery rules adopted in 1970 indicate that both defendants and plaintiffs are so often dilatory in beginning their discovery that a race for priority does not occur very frequently, affording a priority based on first notice in some cases can result in postponing the other parties’ discovery for a very long time. (See Advisory Committee Note to Fed. R. Civ. P. 26.) In most cases it appears more efficient to permit each party to proceed with its discovery, whether by deposition or otherwise, unless in the interests of justice the establishment of priority seems to be called for. The amended rule reserves to the court the power to make such an order. In most instances, however, problems of timing should be worked out between counsel. See paragraph (k).

Paragraph (f)

Paragraph (f) of this rule is derived from the last sentence of former Rule 19-1. The language is unchanged except that it is made applicable to all discovery proceedings.

Paragraph (g)

Paragraph (g) of this rule is a cross-reference to Rule 287, which provides that discovery is not permitted without leave of court in small claims cases, defined in Rule 281 as actions for money not in excess of $2,500, or for the collection of taxes not in excess of that amount.

Paragraph (h)

Rule 201 was amended in 1974 to add paragraph (h) and to reletter former paragraphs (h) and (i) as (i) and (j). Paragraph (h) extends to ordinance violation cases the principle applicable to small claims that discovery procedures under the rules may not be used without leave of court.

Paragraph (i)

Paragraph (i) of this rule makes the provisions of former Rule 19-3, dealing with stipulations for the taking of depositions, applicable to discovery in general. As originally adopted this paragraph was (h). It was relettered (i) in 1974, when the present paragraph (h) was added.

Paragraph (j)

Paragraph (j) of this rule is derived from the last sentence of former Rule 20. The language is unchanged. As originally adopted, this was paragraph (i). It was relettered (j) when present paragraph (h) was added in 1974.

Paragraph (k)

Paragraph (k) was added in 1974. Patterned after the practice in the United States District Courts for the Eastern and Northern Districts of Illinois, it is designed to curtail undue delay in the administration of justice and to discourage motions of a routine nature.

Paragraph (k) was amended to remedy several problems associated with discovery. Language has been added to encourage attorneys to try and resolve discovery differences on their own. Also, committee members cited the problem of junior attorneys, who are not ultimately responsible for cases, perpetuating discovery disagreements. It was agreed that many discovery differences could be eliminated if the attorneys responsible for trying the case were involved in attempts to resolve discovery differences. Reasonable attempts must be made to resolve discovery disputes prior to bringing a motion for sanctions. Counsel responsible for the trial of a case are required to have or attempt a personal consultation before a motion with respect to discovery is initiated. The last sentence of paragraph (k) has been deleted, as the consequences of failing to comply with discovery are discussed in Rule 219.

Paragraph (l)

Paragraph (l) was added in 1981 to negate any possible inference from the language of section 20 of the Civil Practice Act that participation in discovery proceedings after making a special appearance to contest personal jurisdiction constitutes a general appearance and waives the jurisdictional objection, so long as the discovery is limited to the issue of personal jurisdiction.

Paragraph (m)

Paragraph (m) was added in 1989. The new paragraph allows the circuit courts to adopt local rules to regulate or prohibit the filing of designated discovery materials with the clerk. The identity of the affected materials should be designated in the local rules, as should any procedures to compel the filing of materials that would otherwise not be filed under the local rules.

Paragraphs (n) and (o)

Regarding paragraph (n), any claim of privilege with respect to a document must be stated specifically pursuant to this rule. Pursuant to paragraph (o), all discovery filed upon a nonparty shall be filed with the clerk of the court.