ILLINOIS CIVIL DISCOVERY PRACTICE 2014 Edition Forms CD

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1 Chapter 3: Interrogatories ILLINOIS CIVIL DISCOVERY PRACTICE 2014 Edition Forms CD List of Forms 3.52 S.Ct. Rule 213(f) Interrogatories 3.53 Individual Party s Answers to Interrogatories 3.54 Corporate Party s Answers to Interrogatories 3.55 Verification by Individual Party 3.56 Verification by Corporate Party 3.57 Code of Civil Procedure Certification Chapter 4: Production of Documents and Tangible Things 4.42A Initial S.Ct. Rule 219(a) Notice 4.42B Motion To Compel Compliance with S.Ct. Rule 214 Production Request 4.45A Verified Petition for Order of Discovery Pursuant to S.Ct. Rule B Summons for Discovery 4.45C Order for Discovery Pursuant to S.Ct. Rule 224 Chapter 5: Oral Deposition Preparation 5.32 Sample Notice of Deposition 5.33 Sample Proof of Service 5.34 Sample Order for Issuance of Subpoena 5.35 Sample Petition for Issuance of Subpoena Chapter 6: Deposition Taking 6.8 Statement for the Record at Beginning of Oral Deposition 6.12 Deposition Outline-Checklist for an Automobile Accident Case 6.14 Statement to the Witness at the Beginning of the Deposition 6.34A Outline-Checklist for Deposition of a Doctor 6.34B Deposition Questions to Doctor Regarding Causation and Permanency 6.35 Outline-Checklist for Deposition of an Expert Chapter 7: Interjurisdictional Depositions 7.39 Petition for Subpoena to Compel Deposition in Aid of a Case Pending Out of State 7.40 Letter Rogatory 7.41 Commission To Take Deposition Outside Illinois Chapter 8: Motions for Physical and Mental Examinations 8.35 Motion Requiring Physical and/or Mental Examination 8.36 Order Requiring Physical and/or Mental Examination

2 Chapter 9: Quasi-Discovery 9.20 Notice and Demand for Bill of Particulars 9.21 Response to Bill of Particulars 9.22 Motion To Deny Demand for Bill of Particulars 9.23 Motion for Additional or More Specific Particulars 9.38 Notice To Produce 9.39 Objection to S.Ct. Rule 237 Notice 9.56 Request for Admission of Facts or Genuineness of Documents 9.57 Answer to Request for Admission 9.58 Objection to Request for Admission Chapter 10: Remedies for Noncompliance Checklist for Party Moving for Sanctions Checklist for Party Opposing Motion for Sanctions Motion for Protective Order Motion To Compel Party To Appear for Deposition Petition for Rule To Show Cause Nonparty Failure To Appear for Deposition Rule To Show Cause Nonparty Compel Appearance for Deposition Motion To Compel Deponent To Answer Deposition Questions Motion To Compel Production of Certain Documents at Time of Oral Examination Chapter 11: Special Considerations in an Automobile Accident Case Motor Vehicle Interrogatories to Plaintiffs Motor Vehicle Interrogatories to Defendants Request To Produce Chapter 12: Special Considerations in a Construction Injury Case 12.5 Interrogatories for a Construction Injury Case 12.7 Production Request for a Construction Injury Case 12.9 Deposition Rider for Production in a Construction Injury Case Construction Injury Deposition Checklist Clause for S.Ct. Rule 237 Request To Compel Appearance of Persons Chapter 13: Special Considerations in a Medical Negligence Case Medical Malpractice Interrogatories to Plaintiff Medical Malpractice Interrogatories to Defendant Doctor Medical Malpractice Interrogatories to Defendant Hospital Written Request To Produce for Plaintiff Pursuant to S.Ct. Rule Written Request To Produce for Physicians Pursuant to S.Ct. Rule Written Request To Produce for Hospitals Pursuant to S.Ct. Rule 214 Chapter 14: Special Considerations in a Federal Employers Liability Act Plaintiff s Case Preserve Evidence Letter Request for the Production of Documents

3 14.17 Interrogatories Motion for Inspection and Other Relief Chapter 15: Special Considerations in a Federal Employers Liability Act Defendant s Case 15.5 Defendant s Interrogatories to Plaintiff 15.6 Defendant s Request for Production Directed to Plaintiff Defendant s Repetitive Stress Injury/Cumulative Trauma Disorder Interrogatories Directed to Plaintiff Defendant s First Request for Production of Documents Chapter 18: Special Considerations in a Products Liability Case Interrogatories (Excluding Standard Interrogatories) Request To Produce Supreme Court Rule 214 Chapter 19: Special Considerations in a Premises Liability Case 19.5 Interrogatories to Plaintiffs in a Premises Liability Case 19.6 Interrogatories to Defendants in a Premises Liability Case 19.7 Request To Produce for a Premises Liability Case

4 1 The Practical Application of Illinois Discovery Rules THOMAS A. DEMETRIO SUSAN J. SCHWARTZ Corboy & Demetrio DANIEL M. KOTIN Tomasik Kotin Kasserman, LLC Chicago COPYRIGHT 2014 BY IICLE.

5 I. Introduction A. [1.1] Purpose of Discovery B. [1.2] Scope of Discovery in Illinois II. Supreme Court Rule 201 General Discovery Provisions A. [1.3] Discovery Methods B. [1.4] Full Disclosure C. [1.5] Privileges and Work Product 1. Attorney-Client Privilege a. [1.6] Individuals b. [1.7] Corporations 2. [1.8] Work-Product Doctrine D. [1.9] Petrillo Doctrine E. [1.10] Consultants F. [1.11] Protective Orders G. [1.12] Timing of Discovery H. [1.13] Sequence of Discovery I. [1.14] Effect of Discovered Matter J. [1.15] Discovery Disputes K. [1.16] Filing Materials L. [1.17] Claims of Privilege III. Supreme Court Rules Depositions A. [1.18] Rule 202 Purposes for Which Depositions May Be Used B. [1.19] Rule 203 Where Depositions May Be Taken C. [1.20] Rule 204 Compelling Appearance of Deponent 1. [1.21] Deposition Subpoenas 2. [1.22] Deposition Notices 3. [1.23] Production of Documents in Lieu of Appearance of Deponent 4. [1.24] Actions Pending in Other States 5. [1.25] Depositions of Physicians D. [1.26] Rule 205 Persons Before Whom Depositions May Be Taken E. Rule 206 Method of Taking Depositions Upon Oral Examination 1. [1.27] Notice of Deposition 2. [1.28] Representative Deponent 3. [1.29] Audiovisual Depositions 4. [1.30] Remote Electronic Means Depositions 5. [1.31] Method of Examination: Discovery vs. Evidence Depositions 6. [1.32] Objections 7. [1.33] Length of Depositions

6 8. [1.34] Terminating Depositions F. [1.35] Rule 207 Signing and Filing Depositions G. [1.36] Rule 208 Fees and Costs H. [1.37] Rule 209 Failure To Attend or Serve Subpoenas I. [1.38] Rule 210 Depositions on Written Questions J. [1.39] Rule 211 Errors, Irregularities, and Objections at Depositions K. Rule 212 Use of Depositions 1. [1.40] Discovery Depositions 2. [1.41] Evidence Depositions 3. [1.42] Partial Use of Depositions 4. [1.43] Substitution of Parties, Dismissal, and Remand IV. [1.44] Supreme Court Rule 213 Written Interrogatories A. [1.45] Number of Interrogatories B. [1.46] Answers and Objections C. [1.47] Option To Produce Documents D. [1.48] Identity and Testimony of Witnesses E. [1.49] Limitation on Testimony and Freedom To Cross-Examine F. [1.50] Use of Interrogatory Answers G. [1.51] Duty To Supplement H. [1.52] Supreme Court-Approved Interrogatories V. [1.53] Supreme Court Rule 214 Discovery Production of Documents, Objects, and Tangible Things and Inspection of Real Estate VI. [1.54] Supreme Court Rule 215 Physical and Mental Examination of Parties and Other Persons A. [1.55] Notice, Motion, and Order B. [1.56] Examiner s Fee C. [1.57] Examiner s Report D. [1.58] Court-Appointed Independent Examiner VII. [1.59] Supreme Court Rule 216 Admission of Fact or Genuineness of Documents A. [1.60] Requests Allowed B. [1.61] Responses and Late Responses VIII. [1.62] Supreme Court Rule 217 Depositions for the Purpose of Perpetuating Testimony IX. [1.63] Supreme Court Rule 218 Initial Case Management

7 X. Supreme Court Rule 219 Sanctions for Failure To Comply with Discovery and Pretrial Procedures A. [1.64] In General B. [1.65] Voluntary Nonsuits XI. [1.66] Supreme Court Rule 222 Limited and Simplified Discovery in Certain Cases A. [1.67] Affidavit Regarding Damages Sought B. [1.68] Time for Disclosure Continuing Duty C. [1.69] Information That Must Be Disclosed D. [1.70] Limited and Simplified Discovery Procedures E. [1.71] Exclusion of Evidence F. [1.72] Affidavits Wrongly Filed XII. [1.73] Supreme Court Rule 224 Discovery Before Suit To Identify Responsible Persons and Entities

8 2 Limitations on Discovery RICHARD L. MILLER II General Counsel DORA Holdings, Inc. CHRISTOPHER G. DEAN Novack and Macey LLP Chicago COPYRIGHT 2014 BY IICLE.

9 I. [2.1] Introduction II. [2.2] Scope of Discovery III. Constitutional Limitations A. [2.3] Privilege Against Self-Incrimination 1. [2.4] Application of the Privilege Against Self-Incrimination 2. [2.5] Waiver of the Privilege Against Self-Incrimination 3. [2.6] Limitations on the Privilege Against Self-Incrimination B. [2.7] Bank Records IV. [2.8] Statutory Limitations A. [2.9] Marriage Privilege B. [2.10] Physician-Patient Privilege 1. [2.11] Statutory Exceptions to the Physician-Patient Privilege 2. [2.12] Judicially Created Exceptions to the Physician-Patient Privilege 3. [2.13] Ex Parte Communications with Medical Providers C. [2.14] Psychotherapist-Patient Privilege D. [2.15] Clergy s Privilege E. [2.16] Reporter s Privilege F. [2.17] Accountant s Privilege G. [2.18] Social Worker s Privilege H. [2.19] Medical Studies Privilege I. [2.20] Other Statutory Limitations 1. [2.21] The Informant s Privilege 2. [2.22] Union Agent and Union Member Privilege 3. [2.23] Confidentiality of Statements Made to Counselors of Victims of Certain Crimes V. [2.24] Court Rule Limitations A. [2.25] Attorney-Client Privilege 1. [2.26] Scope of the Attorney-Client Privilege 2. [2.27] Necessity of Confidence 3. [2.28] Exceptions to the Attorney-Client Privilege 4. [2.29] Waiver of the Attorney-Client Privilege 5. [2.30] Communications Between an Insured and an Insurance Carrier 6. [2.31] Corporate Clients B. [2.32] Work-Product Doctrine C. [2.33] Protective Orders 1. [2.34] Disclosure of Confidential Information 2. [2.35] Destruction of Evidence

10 VI. [2.36] Common-Law Limitations VII. [2.37] Conclusion

11 3 Interrogatories JUSTIN A. RELIHAN Nidec Motor Corporation St. Louis, MO MEGHAN M. SCIORTINO Johnson & Bell, Ltd. Chicago The contribution of John W. Bell to previous editions of this chapter is gratefully acknowledged. COPYRIGHT 2014 BY IICLE.

12 I. [3.1] Nature and Purpose A. [3.2] Proceedings in Which Interrogatories Are Available B. [3.3] Persons on Whom Interrogatories May Be Served II. Preparing and Serving Interrogatories A. [3.4] Preliminary Considerations 1. [3.5] Permissible Scope a. [3.6] Attorney-Client and Work-Product Privileges b. [3.7] Discovery Documents and Other Items c. Identity of Witnesses (1) [3.8] Lay witnesses (2) Expert witnesses (a) [3.9] In general (b) [3.10] Expert witness defined (c) [3.11] Duty to supplement (d) [3.12] Scope of expert witness testimony d. [3.13] Factual Basis for Pleading 2. [3.14] Deciding Whether To Serve Interrogatories a. [3.15] Cost to Propounding Party b. [3.16] Effect on Responding Party c. [3.17] Anticipated Usefulness of Answers d. [3.18] Effect of Prior Discovery B. Drafting 1. [3.19] Basic Principles 2. [3.20] Definitions of Terms Used in Interrogatories 3. [3.21] Contesting Interrogatories and Requests To Admit C. [3.22] Commencement of Discovery/Case Management III. Responding to Interrogatories A. [3.23] Duty To Respond B. Time To Respond 1. [3.24] Statutory Requirements 2. [3.25] Effect of Failure To Make Timely Response C. Objecting to Interrogatories 1. [3.26] Grounds for Objection a. [3.27] Irrelevant to the Subject Matter b. [3.28] Annoyance, Expense, Embarrassment, or Oppression (1) [3.29] Information equally available to both parties (2) [3.30] Boilerplate and shotgun interrogatories c. [3.31] Privilege and Work Product

13 d. [3.32] Uncertain, Ambiguous, and Unintelligible Interrogatories 2. [3.33] Objections That Have Been Held Invalid 3. [3.34] Objections That Have Been Held Valid 4. [3.35] Drafting Objections Basic Principles D. Answering Interrogatories 1. [3.36] Who May Answer for Party 2. Effect of Incorrect Answers a. [3.37] Made in Good Faith b. [3.38] Made in Bad Faith 3. Duty To Investigate Before Answering a. [3.39] Basic Rule b. [3.40] Impropriety of I Don t Know Answer c. [3.41] Fifth Amendment Privilege d. [3.42] Answer by Reference to Business Records 4. Preparing and Drafting Answers a. [3.43] Basic Considerations b. [3.44] Form and Verification of Answers c. [3.45] Answers by Reference to Other Answers or Other Documents d. [3.46] Reservation Concerning Subsequently Discovered Facts E. Modification of Answers 1. [3.47] Supplementation 2. Amendment a. [3.48] Criteria for Amendment b. [3.49] Procedures IV. [3.50] Compelling Answers and Further Answers to Interrogatories V. [3.51] Using Interrogatories in Court VI. Appendix Forms A. [3.52] Supreme Court Rule 213(f) Interrogatories B. Answers to Interrogatories 1. [3.53] Individual Party 2. [3.54] Corporate Party C. Verification 1. [3.55] Individual Party 2. [3.56] Corporate Party 3. [3.57] Section Certification

14 4 Production of Documents and Tangible Things THOMAS J. NATHAN JEFFREY A. SCHULKIN Law Offices of Munday & Nathan Chicago The authors gratefully acknowledge the research assistance of Mark Munninghoff, an attorney at the Law Offices of Munday & Nathan. COPYRIGHT 2014 BY IICLE.

15 I. Preliminary Considerations A. [4.1] Authority 1. Supreme Court Rule 201 a. [4.2] Scope b. [4.3] Methods and Duplication of Discovery c. [4.4] Computer-Stored Information d. [4.5] Timing, Sequence, and Cutoff e. [4.6] Protective Orders f. [4.7] Supreme Court Rule 201(k) g. [4.8] Withholding Matters Claimed To Be Privileged h. [4.9] Costs of Production i. [4.10] Obtaining Leave of Court 2. [4.11] Supreme Court Rule 213(e) Attaching Documents to Answers to Interrogatories 3. [4.12] Supreme Court Rule 213(f)(3) Reports of Controlled Expert Witnesses 4. [4.13] Supreme Court Rule 214 a. [4.14] Objections b. [4.15] Affidavit of Compliance c. [4.16] Duty To Organize Materials Produced d. [4.17] Computer-Stored Information e. [4.18] Duty To Supplement 5. [4.19] Supreme Court Rule [4.20] Supreme Court Rule 222 Cases of $50,000 or Less B. Coordination with Other Discovery 1. [4.21] Depositions and Interrogatories 2. [4.22] Request To Produce at Trial 3. [4.23] Subpoena II. Procedures of Party Seeking Production A. Supreme Court Rule [4.24] Basic Provisions 2. [4.25] Scope of Request a. [4.26] Product in a Products Liability Case b. [4.27] Creating or Locating Objects c. [4.28] Corporate Memory d. [4.29] Mental Health and Alcohol Abuse Records e. [4.30] Lists of Law Clients f. [4.31] Identity of Medical Patients g. [4.32] Lists of Witnesses h. [4.33] Statements of Employees i. [4.34] Statement of Nonparty Taken by Insurance Company j. [4.35] Identity of Consulting Expert

16 3. [4.36] Basic Request 4. Requests Relating to Specific Causes of Action a. [4.37] Products Liability b. [4.38] Medical Negligence c. [4.39] Railroad Crossings d. [4.40] Premises Liability e. [4.41] Construction Negligence 5. [4.42] Obtaining Court Order for Failure To Respond to Request for Production 6. Sanctions for Failure To Comply with Discovery Orders a. [4.43] Sanctions for Withholding Available Evidence b. [4.44] Sanctions for Disposing of Available Evidence B. Obtaining Production from Nonparty 1. [4.45] In General 2. [4.46] Records Depositions III. Procedures of Party Responding A. [4.47] Compliance B. [4.48] Objections C. [4.49] Work Product

17 5 Oral Deposition Preparation MICHELLE J. ROZOVICS Rozovics & Crawford LLP Crystal Lake This chapter was not reviewed or updated for the 2014 edition. The 2011 supplement has been integrated into the 2009 edition for this edition. The reader is encouraged to shepardize or otherwise update citations in the chapter before relying on them. Web links have been checked and updated by IICLE. COPYRIGHT 2009 BY MICHELLE J. ROZOVICS. COPYRIGHT 2011 BY IICLE.

18 I. [5.1] Scope of Chapter II. [5.2] Statutory Foundations for Taking Oral Depositions A. [5.3] Who Can Be Deposed? 1. [5.4] Proceedings in Which Depositions May Be Taken 2. [5.5] Potential Deponents a. [5.6] Parties b. [5.7] Witnesses c. [5.8] Limits on Who Can Be Deposed d. [5.9] Respondents in Discovery B. [5.10] What Type of Oral Deposition? C. [5.11] Where Should the Deposition Proceed? D. [5.12] When Should the Deposition Be Taken? E. [5.13] How Should the Deposition Proceed? 1. [5.14] Notices for Depositions 2. [5.15] Subpoena Depositions 3. [5.16] Video Depositions 3 1. [5.16A] Sanctions for Noncompliance with Deposition Procedures 4. [5.17] Stipulations 5. [5.18] Compelling Production of Deponents Documents 6. [5.19] Interstate or International Depositions 7. [5.20] Special Considerations for International Depositions 8. [5.21] Petition To Perpetuate Testimony 9. [5.22] Costs III. [5.23] Oral Deposition Preparation A. [5.24] Determining Which Witnesses To Depose Using Supreme Court Rule 213(f) Requiring Disclosure of Witnesses for Trial 1. [5.25] Lay Witnesses 2. [5.26] Independent Expert Witnesses 3. [5.27] Controlled Expert Witnesses B. [5.28] Preparing To Take or To Attend Discovery Deposition C. [5.29] Preparing To Present Deponent D. [5.30] Privileges E. [5.31] Preparing for Evidence Deposition IV. Appendix A. [5.32] Sample Notice of Deposition B. [5.33] Sample Proof of Service C. [5.34] Sample Order for Issuance of Subpoena

19 D. [5.35] Sample Petition for Issuance of Subpoena

20 6 Deposition Taking JOHN J. LYNCH Figliulo & Silverman, P.C. ERIN LYNCH CORDIER Shefsky & Froelich Chicago COPYRIGHT 2014 BY IICLE.

21 I. Introduction A. [6.1] Scope of Chapter B. [6.2] Guiding Principles C. [6.3] Statutes and Case Decisions II. Taking a Deposition A. Persons Who May Be Present 1. [6.4] Parties and Consulting Experts 2. [6.5] Second Interpreter and Second Court Reporter 3. [6.6] Excluding Nonparty Witnesses and the Public B. Stipulations and Statements for the Record 1. [6.7] Usual Procedure Regarding Stipulations 2. [6.8] Initial Statements for the Record Discovery or Evidence Deposition C. Role of Counsel Taking a Deposition 1. [6.9] Keys to Successful Deposition Taking a. [6.10] Inquisitiveness b. [6.11] Thoroughness Time Limit for Discovery Depositions (1) [6.12] Sample deposition outline-checklist (2) [6.13] Use of deposition outline-checklist 2. [6.14] Preliminary Statement to the Deponent 3. [6.15] Responding to a Request for Prior Statements of the Deponent 4. Questioning the Deponent a. [6.16] Setting the Tone of the Deposition and Sequence of Questioning b. [6.17] The Reasons for a Deposition Determine the Form of Questions (1) [6.18] To discover information (2) [6.19] To commit the deponent to specific facts (3) [6.20] To obtain admissions (4) [6.21] To secure impeaching testimony (5) [6.22] To gain an impression of the deponent (6) [6.23] Changing the manner of formulating questions 5. Using Documents and Photographs at a Deposition a. [6.24] Securing Documents and Photographs Before a Deposition b. [6.25] Securing Documents Used To Refresh the Deponent s Recollection c. [6.26] Marking Documents and Photographs as Exhibits d. [6.27] Drawing on a Photograph at a Deposition 6. Common Situations Encountered at a Deposition a. [6.28] Response of I Don t Recall b. [6.29] Response of I Don t Know c. [6.30] Nonresponsive Answer Certifying the Question d. [6.31] Defects in the Form of an Answer e. [6.32] Refusal To Answer

22 7. Procedures at Depositions of Various Individuals a. [6.33] Supreme Court Rule 213(f) Witnesses b. [6.34] Physicians c. [6.35] Experts d. [6.36] Deponents Who Speak a Foreign Language e. [6.37] Minors 8. [6.38] Written Questions at a Deposition 9. [6.39] Concluding a Deposition Deponent s Reading and Signature D. Role of Deponent s Counsel 1. [6.40] Listening in Silence 2. [6.41] Objecting to Improper Questions 3. [6.42] Reining in Obstreperous Opposing Counsel 4. [6.43] Instructing the Deponent Not To Answer 5. [6.44] Terminating the Deposition 6. [6.45] Examining the Deponent E. Videotaped Depositions 1. [6.46] General Requirements 2. [6.47] Detailed Procedures 3. [6.48] Depositions by Videoconference III. Post-Deposition Proceedings A. [6.49] Transcription and Fees B. [6.50] Submission to the Deponent Changes and Signing C. [6.51] Certifying and Filing the Deposition Transcript D. [6.52] Objecting to the Deposition Transcript IV. [6.53] Conclusion

23 7 Interjurisdictional Depositions RICHARD FRED JOHNSON Hughes Socol Piers Resnick & Dym, Ltd. Chicago MAI LIN P. NOFFKE Glenview COPYRIGHT 2014 BY IICLE.

24 I. [7.1] Scope of Chapter II. Taking Depositions Out of State for Use in Illinois A. Preliminary Considerations 1. [7.2] Statutory Authority 2. [7.3] Strategy and Tactics 3. [7.4] Conflict of Laws Problems 4. [7.5] Associating Local Counsel 5. [7.6] Selecting Deposition Officer B. Procedure 1. [7.7] Party 2. Nonparty a. [7.8] Initiating Deposition: Need for a Commission b. New York Depositions (1) [7.9] Notice (if held applicable) (2) [7.10] Compelling attendance and production (3) [7.11] Before whom depositions may be taken (4) [7.12] Objections and protective orders (5) [7.13] Post-deposition procedure c. Michigan Depositions (1) [7.14] Notice (if held applicable) (2) [7.15] Compelling attendance and production (3) [7.16] Before whom depositions may be taken (4) [7.17] Objections and protective orders (5) [7.18] Post-deposition procedure d. California Depositions (1) [7.19] Notice (if held applicable) (2) [7.20] Compelling attendance and production (3) [7.21] Before whom depositions may be taken (4) [7.22] Objections and protective orders (5) [7.23] Post-deposition procedure e. [7.24] Use at Trial III. Taking Depositions in Foreign Countries for Use in Illinois A. Preliminary Considerations 1. [7.25] Statutory Authority 2. [7.26] Strategy and Tactics B. Procedure Initiating Deposition 1. [7.27] Notice 2. [7.28] Commission or Letters Rogatory C. [7.29] Transmittal of Papers

25 D. [7.30] The Deposition E. [7.31] Use of Deposition at Trial IV. Taking Depositions in Illinois for Use Out of State A. [7.32] Statutory Authority B. Procedure 1. [7.33] Associating Illinois Counsel 2. [7.34] Selecting Deposition Officer 3. [7.35] Selecting Time and Place 4. [7.36] Compelling Attendance and Production 5. [7.37] Objections and Protective Orders 6. [7.38] Post-Deposition Procedure V. Appendix A. [7.39] Sample Petition for Subpoena To Compel Deposition in Aid of a Case Pending Out of State B. [7.40] Sample Letter Rogatory C. [7.41] Commission To Take Deposition Outside Illinois D. [7.42] Table of Other States Rules Governing Depositions

26 8 Motions for Physical and Mental Examinations MICHAEL C. KOMINIAREK Kominiarek Bresler Harvick & Gudmundson, LLC Chicago COPYRIGHT 2014 BY IICLE.

27 I. Scope of Chapter A. [8.1] In General B. [8.2] Forms II. Preliminary Considerations A. [8.3] Authority for Examinations B. Prerequisites to Issuance of Order 1. [8.4] Good Cause Requirement 2. [8.5] Two Requirements Necessary 3. [8.6] Court Has Broad Discretion C. [8.7] Restrictions on Examination D. [8.8] Who May Examine E. [8.9] Who May Be Examined F. [8.10] Time and Place of Examination G. [8.11] Cost of Examination H. [8.12] Who May Be Present III. Procedures A. [8.13] When Request Must Be Made B. [8.14] Examination by Agreement of Parties C. Motion for Examination and Documents in Opposition 1. [8.15] Contents of Motion 2. [8.16] Documents in Opposition a. [8.17] Affidavit in Opposition b. [8.18] Protective Order D. [8.19] Sanctions for Failure To Comply with Order E. Written Reports 1. [8.20] Persons Entitled to Report 2. [8.21] Consequences of Failure To Provide Report 3. [8.22] Use of Report at Trial 4. [8.23] Status of Examiner F. [8.24] Impartial Medical Examination 1. [8.25] Evidence 2. [8.26] Reports IV. Tactical Considerations A. [8.27] Comparison with Other Discovery Techniques 1. [8.28] Examination of Records 2. [8.29] Medical Review of Records

28 3. [8.30] Deposition of Witnesses B. [8.31] Consequences of Requesting Examination 1. [8.32] Advantages 2. [8.33] Disadvantages V. [8.34] Conclusion VI. Appendix Forms for Use in Connection with Examination A. [8.35] Sample Motion Requiring Physical and/or Mental Examination B. [8.36] Sample Order Requiring Physical and/or Mental Examination

29 9 Quasi-Discovery MILES J. ZAREMSKI Zaremski Law Group Northbrook CRAIG M. MANDELL Berger Schatz Chicago and Lake Forest The authors gratefully acknowledge the contributions of Jason Krawetz, who assisted in the research and preparation of this chapter. COPYRIGHT 2014 BY IICLE.

30 I. Bills of Particulars A. [9.1] Purpose and Nature 1. Effect of Bill a. [9.2] Amplification of Pleadings b. [9.3] Limitation of Recovery or Causes of Action c. [9.4] Limitation of Proofs at Trial 2. [9.5] Action in Which Demand for Bill May Be Made 3. Comparison to Other Procedures: Discovery and Motions Attacking the Pleadings a. [9.6] Motion for More Particular Statement b. [9.7] Motion To Strike Pleadings c. [9.8] Discovery B. Procedure for Making Demand 1. [9.9] Who May Make Demand for Bill 2. [9.10] When and How Demand Is Made C. Response to Demand 1. [9.11] Objections 2. [9.12] Time for Response 3. [9.13] Content of Bill 4. [9.14] Amendments to Bill 5. [9.15] Filing and Service D. Failure To Provide Satisfactory or Timely Bill 1. [9.16] Motion To Strike Bill or for More Complete Bill 2. [9.17] Demand for Further Bill 3. [9.18] Sanctions Pursuant to Supreme Court Rule 219(c) E. [9.19] Federal Rules of Civil Procedure F. Forms 1. [9.20] Notice and Demand for Bill of Particulars 2. [9.21] Response to Bill of Particulars 3. [9.22] Motion To Deny Demand for Bill of Particulars 4. [9.23] Motion for Additional or More Specific Particulars II. Compelling Production at Trial A. Supreme Court Rule [9.24] The Basics of Supreme Court Rule [9.25] Supreme Court Rule 237(a) Witnesses 3. [9.26] Supreme Court Rule 237(b) Documents or Tangible Things 4. [9.27] Not a Vehicle for Discovery 5. [9.28] Persons and Matter Subject to Production 6. [9.29] Scope of Production B. Procedures of Party Seeking Production 1. [9.30] When Notice May Be Served

31 2. [9.31] Contents of the Notice Description of Persons or Items To Be Produced C. Procedures of Responding Party 1. [9.32] Compliance 2. [9.33] Objections 3. [9.34] Motion To Quash Supreme Court Rule 237 Request 4. [9.35] Failure or Refusal To Respond D. [9.36] Appellate Review E. [9.37] Federal Procedure F. Forms 1. [9.38] Notice To Produce 2. [9.39] Objection to Supreme Court Rule 237 Notice III. Requests for Admissions of Facts and Genuineness of Documents A. Purpose and Effect 1. [9.40] Supreme Court Rule 216; Related Federal Procedure 2. [9.41] Nature and Purpose 3. [9.42] Effect of Admission B. [9.43] Procedure for Submitting Requests for Admissions 1. [9.44] When Requests May Be Served 2. [9.45] Number of Requests Allowed 3. Content of Requests To Admit a. [9.46] Admissions of Fact b. [9.47] Genuineness of Documents c. [9.48] Federal Practice C. [9.49] Responses to Requests for Admissions 1. [9.50] Denials 2. [9.51] Good Faith/Good Reasons Requirement for Denials 3. [9.52] Objections to Requests D. [9.53] Failure To Timely Respond E. [9.54] Res Judicata F. [9.55] Public Records G. Forms 1. [9.56] Request for Admission of Facts or Genuineness of Documents 2. [9.57] Answer to Request for Admission 3. [9.58] Objection to Request for Admission

32 10 Remedies for Noncompliance JOSEPH G. FEEHAN Heyl, Royster, Voelker & Allen, P.C. Peoria The author wishes to acknowledge the contributions of associate Monica Kim to this chapter. The contribution of Robert V. Dewey Jr. to prior editions of this chapter is gratefully acknowledged. COPYRIGHT 2014 BY IICLE.

33 I. Introduction A. [10.1] Scope of Chapter B. [10.2] Authority for Supervising Discovery II. Compelling Discovery A. [10.3] Scope of Trial Court s Authority B. [10.4] Various Types of Discovery 1. [10.5] Depositions a. [10.6] Compelling Attendance b. [10.7] Compelling Answers to Specific Questions c. [10.8] Compelling Witness To Produce Documents 2. [10.9] Interrogatories 3. [10.10] Requests To Produce 4. [10.11] Motions for Physical Examination C. Procedure 1. [10.12] Methods a. [10.13] Moving Party b. [10.14] Opposing Party 2. [10.15] Grounds 3. [10.16] Order 4. [10.17] Appellate Review a. [10.18] Generally Interlocutory and Not Immediately Appealable b. [10.19] Contempt c. [10.20] Supreme Court Rule 224 d. [10.21] Mandamus III. Sanctions A. [10.22] Scope of Trial Court s Authority B. Sanctions Common to All Discovery 1. [10.23] Sanctions Against Parties a. [10.24] Motion for Sanctions b. [10.25] Unreasonable Failure To Comply with Discovery Rules c. [10.26] Failure To Comply with Order d. [10.27] Need for a Just Order e. [10.28] Imposition of Sanctions (1) [10.29] Stay of further proceedings (2) [10.30] Barring testimony (3) [10.31] Extreme sanctions (4) [10.32] Burden on sanctioned party f. [10.33] Cautionary Note

34 2. [10.34] Sanctions Against Nonparties 3. [10.35] Sanctions Against Attorneys C. Sanctions Relating to Particular Discovery 1. [10.36] Depositions 2. [10.37] Interrogatories 3. [10.38] Requests To Produce 4. [10.39] Motions for Physical Examination D. Procedures for Obtaining Sanctions 1. [10.40] Prerequisites 2. Motion a. [10.41] Moving Party b. [10.42] Opposing Party 3. [10.43] Order E. [10.44] Sanctions Under Supreme Court Rule 137 IV. [10.45] Conclusion V. Appendix A. [10.46] Motion for Protective Order B. [10.47] Motion To Compel Party To Appear for Deposition C. [10.48] Petition for Rule To Show Cause Nonparty Failure To Appear for Deposition D. [10.49] Rule To Show Cause Nonparty Compel Appearance for Deposition E. [10.50] Motion To Compel Deponent To Answer Deposition Questions F. [10.51] Motion To Compel Production of Certain Documents at Time of Oral Examination

35 11 Special Considerations in an Automobile Accident Case JEFFREY J. KROLL Salvi, Schostok & Pritchard P.C. Chicago COPYRIGHT 2014 BY IICLE.

36 I. [11.1] Introduction II. [11.2] Pre-Suit Investigation by the Plaintiff A. [11.3] Obtaining Records B. [11.4] Scene Visit III. [11.5] Written Discovery A. Written Interrogatories 1. [11.6] Standard Interrogatories 2. [11.7] Numerical Limits 3. [11.8] Duty To Supplement Answers to Interrogatories 4. [11.9] Trial Witnesses a. [11.10] Lay Witnesses b. [11.11] Independent Expert Witnesses c. [11.12] Controlled Expert Witnesses 5. [11.13] Preparing Answers to Written Interrogatories B. [11.14] Requests To Produce C. [11.15] Obtaining Records D. [11.16] Request for Medical Examination E. Depositions 1. [11.17] Preparation Is the Key 2. [11.18] Deposition Procedures 3. [11.19] Use of Depositions 4. Relevant Deposition Issues in Specific Auto Accident Settings a. [11.20] Rear-End Collision b. [11.21] Sideswipe c. [11.22] Left Turn d. [11.23] Red Light-Green Light e. [11.24] Auto-Pedestrian f. [11.25] Auto-Bicycle g. [11.26] Stop Sign-Through Street 5. [11.27] Types of Depositions a. [11.28] Witness Depositions b. [11.29] Depositions of Parties (1) [11.30] Preparing your own client for deposition (2) [11.31] Preparing for an adverse party deposition (3) [11.32] Taking the defendant driver s deposition IV. Additional Discovery Considerations A. [11.33] Case Management Conferences

37 B. [11.34] Enforcement of Discovery C. [11.35] Evaluation of Discovery V. [11.36] Standard Interrogatories and Request To Produce in Automobile Cases A. [11.37] Standard Motor Vehicle Interrogatories to Plaintiffs B. [11.38] Standard Motor Vehicle Interrogatories to Defendants C. [11.39] Request To Produce

38 12 Special Considerations in a Construction Injury Case DANIEL V. O CONNOR JEFFREY S. JORDAN O Connor & Nakos Ltd. Chicago COPYRIGHT 2014 BY IICLE.

39 I. [12.1] Introduction A. [12.2] Direct Negligence B. [12.3] Differentiating Between RESTATEMENT 414 and Direct Negligence II. Interrogatories A. [12.4] In General B. [12.5] Sample Interrogatories III. Production Requests A. [12.6] In General B. [12.7] Sample Request To Produce IV. Depositions A. [12.8] In General B. [12.9] Sample Deposition Notice Rider C. [12.10] Sample Construction Injury Deposition Checklist V. Illinois Supreme Court Rule 237 A. [12.11] In General B. [12.12] Sample Paragraph Relating to Production of Persons VI. [12.13] Discovery for the Defendant VII. [12.14] Conclusion

40 13 Special Considerations in a Medical Negligence Case THOMAS A. DEMETRIO SUSAN J. SCHWARTZ Corboy & Demetrio DANIEL M. KOTIN Tomasik Kotin Kasserman, LLC Chicago COPYRIGHT 2014 BY IICLE.

41 I. [13.1] What Is Unique About Discovery in Medical Negligence Cases? II. Areas for Discovery in Medical Negligence Cases A. [13.2] Defendant Doctors and Expert Witnesses B. [13.3] The Plaintiff-Defendant Relationship C. [13.4] Diagnostic Procedures D. [13.5] Hospitalization E. [13.6] Operative Procedures F. [13.7] Miscellaneous Considerations III. [13.8] Petrillo, the Hospital Licensing Act, and the Medical Studies Act IV. [13.9] Interrogatories A. [13.10] Interrogatories to Plaintiff B. [13.11] Interrogatories to Defendant Doctor C. [13.12] Interrogatories to Defendant Hospital V. [13.13] Requests To Produce A. [13.14] Plaintiff B. [13.15] Physicians C. [13.16] Hospitals

42 14 Special Considerations in a Federal Employers Liability Act Plaintiff s Case DAVID R. JONES Beatty, Motil & Jones Glen Carbon COPYRIGHT 2014 BY IICLE.

43 I. [14.1] Introduction II. [14.2] Initial Interview with Federal Employers Liability Act Client III. [14.3] Statements of Witnesses IV. [14.4] Ex Parte Interviews and Statements of Witnesses V. [14.5] Railroad Records VI. [14.6] Union Officials VII. [14.7] Rule Books VIII. [14.8] Governmental Regulations and Publications IX. [14.9] Other Publications X. [14.10] Association of American Railroads Documents/Craft Job Descriptions XI. [14.11] Contract Between Union and Railroad XII. [14.12] Transcript of Investigation XIII. [14.13] Experts XIV. [14.14] Rehabilitation XV. [14.15] Prediscovery Tool Preserve Evidence Letter; Sample Letter XVI. Discovery Tools A. [14.16] Request for Production; Sample Request B. [14.17] Interrogatories; Sample Interrogatories C. [14.18] Motion for Inspection and Other Relief; Sample Motion D. [14.19] Depositions XVII. [14.20] Retaliatory Discharge XVIII. [14.21] Conclusion

44 15 Special Considerations in a Federal Employers Liability Act Defendant s Case CHARLES J. SWARTWOUT Boyle Brasher, LLC Belleville COPYRIGHT 2014 BY IICLE.

45 I. [15.1] Introduction II. [15.2] Investigation III. [15.3] Defenses Sought in Discovery IV. [15.4] Written Discovery A. [15.5] Interrogatories; Sample Interrogatories B. [15.6] Request for Production; Sample Request V. [15.7] Responding to Plaintiff s Discovery Requests VI. [15.8] Deposition VII. [15.9] Alleged Cumulative Trauma A. [15.10] Interrogatories; Sample Interrogatories B. [15.11] Request for Production; Sample Request VIII. [15.12] Conclusion

46 16 Special Considerations in a Class Action KEVIN M. FORDE KEVIN R. MALLOY Forde Law Offices LLP Chicago COPYRIGHT 2014 BY IICLE.

47 I. What Is Unique About Discovery in Class Action Cases A. [16.1] Discovery Regarding Class Issues Should Be Done as Soon as Practicable B. [16.2] Federal Legislation Impacting Timing of Discovery C. [16.3] Federal Court Stays of State Court Discovery D. [16.4] Private Securities Litigation Reform Act Stays and Derivative Actions E. [16.5] Pre-Certification Communications with Putative Class Members F. [16.6] Discovery of Absent Class Members II. [16.7] Areas for Discovery in Class Action Cases A. [16.8] Discovery To Determine the Existence of Class Action Prerequisites B. [16.9] General Considerations

48 17 Special Considerations in a Wrongful-Death Case M. JOHN HEFNER, JR. Mattoon COPYRIGHT 2014 BY IICLE.

49 I. [17.1] Introduction II. Plaintiff s Case A. [17.2] First Client Contact B. [17.3] Next of Kin C. [17.4] Medical Providers D. [17.5] Inquest Testimony E. [17.6] Supreme Court Rule 213 Interrogatories F. [17.7] Prefiling Statements G. [17.8] The Complaint H. [17.9] Document Production I. [17.10] Witnesses J. [17.11] Expert Witnesses K. [17.12] Supreme Court Rule 216 Requests To Admit Facts L. [17.13] Expert Discovery III. Defendant s Investigation and Trial Preparation A. [17.14] Investigation B. [17.15] Defendant s Discovery C. [17.16] Discovery Tools IV. [17.17] Summary

50 18 Special Considerations in a Products Liability Case LEW R. C. BRICKER SANDRA J. ENGELKING SmithAmundsen LLC Chicago COPYRIGHT 2014 BY IICLE.

51 I. [18.1] What Is Unique About Discovery in the Area of Products Liability? A. [18.2] Interrogatories B. [18.3] Depositions C. [18.4] Requests To Produce D. [18.5] Spoliation of Evidence E. [18.6] Strict Liability II. Areas for Investigation A. Information Gathering 1. [18.7] The Incident 2. [18.8] The Product in Question B. Litigation Preparation 1. [18.9] Generally 2. [18.10] Deposing an Adverse Witness 3. [18.11] Deposing the Plaintiff C. Examples 1. [18.12] Sample Interrogatories (Excluding Standard Interrogatories) 2. [18.13] Sample Request To Produce Supreme Court Rule 214

52 19 Special Considerations in a Premises Liability Case LEW R. C. BRICKER SmithAmundsen LLC Chicago COPYRIGHT 2014 BY IICLE.

53 I. [19.1] Effective Use of Discovery in Premises Liability Litigation A. [19.2] Relevant Deposition Issues B. [19.3] Obtaining Records II. [19.4] Areas for Discovery in a Premises Liability Case III. Interrogatories in Premises Liability Cases A. [19.5] Sample Interrogatories to Plaintiffs B. [19.6] Sample Interrogatories to Defendants IV. [19.7] Sample Request To Produce