Illinois divorce courts make decisions based on evidence. Evidence cannot be presented to an Illinois divorce judge if you don’t have a copy of that evidence.
In an Illinois divorce, the evidence you do not already have is often held by the other spouse. In the midst of a divorce, a spouse is not likely to tender necessary evidence to their soon-to-be-ex just because you asked nicely. Instead, discovery must be conducted.
“[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action” Ill. Sup. Ct. R. 201(b)(1)
Producing Documents Under A Party’s Possession And Control In An Illinois Divorce
One form of discovery in an Illinois divorce is the Notice To Produce.
“Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, including electronically stored information as defined under 201 (b)(4), objects or tangible things…or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents, objects, tangible things, or real estate is relevant to the subject matter of the action. The request shall specify a reasonable time” Ill. Sup. Ct. R. 214(a)
The other party then must turn over the documents in their possession “A party served with the written request shall (1) identify all materials in the party’s possession responsive to the request and copy or provide reasonable opportunity for copying or inspections.” Ill. Sup. Ct. R. 214
Possession is a loose concept during the Illinois discovery process. Possession in Illinois discovery means, approximately, “having access to.”
“A party may be required to produce documents which are in the possession of third parties, where he has custody or control of those documents.” Central Nat’l Bank v. Baime, 112 Ill. App. 3d 664, 669 (Ill. App. Ct. 1982)
If a party does not have possession or control of a document, they do not have to turn that document over as requested.
“[A] party cannot be compelled to produce that which is not within his custody, possession or control.” Wiebusch v. Taylor, 97 Ill. App. 3d 210, 214 (1981)
After a party has turned over the discovery which they have access to. How can you know what they didn’t have access to versus…what they just decided not to turn over?
The party producing discovery must swear that they produced what they had access to.
The Affidavit Of Completeness In An Illinois Divorce
“The producing party shall furnish an affidavit stating whether the production is complete in accordance with the request.” Ill. Sup. Ct. R. 214(c)
Local rules for a divorce’s Illinois county require additional specificity.
“Every Illinois Supreme Court Rule 214 Affidavit of Compliance shall, in addition to the requirements of the Illinois Supreme Court Rule, list with specificity the documents produced in accordance with the request.” Cook County Court Rule 13.4(g)(iv)
Parties often produce documents without an accompanying affidavit of compliance. The best practice is to include a blank affidavit of compliance with your notice to produce as a reminder. Failing that, you can ask the party to later sign an affidavit of compliance.
“[An Illinois] court [can] order[ a party] to…produce all organizational documents or an affidavit of completeness asserting that all documents were produced” VILLAGE REALTY, INC. v. Carlino, Ill: Appellate Court, 1st Dist. 2021
For the person responding to discovery, an Affidavit of Completeness is a tool to say, “Here. I am done,” and thereby avoid further harassment due to the unlimited nature of an Illinois Notice To Produce.
Without further ado, here’s a sample Affidavit of Completeness (also known as an affidavit of compliance)
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, DOMESTIC RELATIONS DIVISION
IN RE: THE MARRIAGE OF )
AFFIDAVIT OF COMPLIANCE WITH
REQUEST FOR PRODUCTION OF DOCUMENTS
I, the undersigned, do hereby certify that a copy of a Response to Request for Production of Documents and exact copies of documents produced by Petitioner, [Name], in response to the said Response to Request for Production of Documents were mailed to the attorney for the Respondent. The Petitioner further states that she has produced copies of any and all documents in her possession to the best of her knowledge and belief, production is complete in accordance with the said Request for Production of Documents.
[Name of Document Producer]
Subscribed and sworn to before me on
This day of , 20 .
What If The Documents Requested Are Not In A Party’s Possession Or Control?
In addition to swearing to having turned over what they had access to, a spouse must explain what they did NOT have access to…or be subject to further inspection.
“If the party claims that the item is not in his or her possession or control or that he or she does not have information calculated to lead to the discovery of its whereabouts, the party may be ordered to submit to examination in open court or by deposition regarding such claim.” Ill. Sup. Ct. R. 214(c)
This further inspection is described as having two forms: “examination in open court” or “by deposition.”
For some reason, “examination in open court” never seems to happen in divorce cases. In collections cases, judges routinely tell people (pre-Zoom) “go out in the hall and ask him questions under oath.” I’ve never seen that happen in an Illinois divorce court. No reason it couldn’t happen.
Depositions are very common when someone is actively lying and you need to determine what they are lying about and why.
Without this inquiry into whether the documents were, in fact, in the possession and control of the party, the court cannot sanction the alleged document withholding party.
“[T]he [discovery] sanction decision [must be] factually and legally informed and reasoned.” Cirrincione v. Westminster Gardens Ltd. Partnership, 352 Ill. App. 3d 755, 761 (Ill. App. Ct. 2004)
Lawyers, at least, are supposed to be honest with each other so depositions are usually unnecessary if both lawyers communicate via Rule 201(k) conference. A rule 201(k) conference is the most common way to figure out what is missing and what a party had or did NOT have access to.
“The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery. Every motion with respect to discovery shall incorporate a statement that counsel responsible for trial of the case after personal consultation and reasonable attempts to resolve differences have been unable to reach an accord or that opposing counsel made himself or herself unavailable for personal consultation or was unreasonable in attempts to resolve differences.” Ill. Sup. Ct. R. 201(k)
Simply, the parties (or their attorneys) get on the phone and go over the affidavit of compliance and confirm that the party doesn’t have the items in their possession or control as sworn to.
The parties are required to perform a 201(k) conference before any further steps are taken in regards to enforcing the discovery rules.
“Failure to include a statement in compliance with Rule 201(k) should result in dismissal of the motion [to compel]” Brandt v. John S. Tilley Ladders Co., 495 NE 2d 1269 – Ill: Appellate Court, 1st Dist. 1986
If at a 201(k) conference it is discovered that the affidavit of completeness was signed in error, then it will likely be “no harm, no foul.”
If it is believed that the party does have possession or control of a document that was not turned over despite the sworn affidavit of completeness, the other party can proceed with a motion to compel production of discovery.
Typically, however, it is simpler to subpoena a third party who actually admits to having the documents than it is to compel someone to produce documents they lied about not having.
What Happens If A Party In An Illinois Divorce Lies On Their Affidavit Of Completeness?
The Illinois discovery process presumes a lot of fair dealing from all parties. At any point, the process can break down if either party simply says “I don’t have that document or have access to it.”
If the affidavit of completeness is false, there are going to be big consequences from the court.
“If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.”, Ill. Sup. Ct. R. 137
The “other document…signed” most certainly includes affidavits.
“Affidavits made in bad faith. If it appears to the satisfaction of the court at any time that any affidavit presented pursuant to this Section is presented in bad faith or solely for the purpose of delay, the court shall without delay order the party employing it to pay to the other party the amount of the reasonable expenses which the filing of the affidavit caused him or her to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.” 735 ILCS 5/2-1005(f)
At the very least, the party falsely testifying on their affidavit of completeness will be responsible for the other party’s attorneys’ fees which were incurred when discovering such duplicity and bringing it to the court’s attention.
There can even be criminal penalties for signing a false affidavit of completeness.
“Any person who makes a false statement, material to the issue or point in question, which he does not believe to be true, in any pleading, affidavit or other document certified by such person in accordance with this Section shall be guilty of a Class 3 felony.” 735 ILCS 5/1-109
If you are getting frustrated by the Illinois divorce discovery process you can end everything by pointing out that you’ve signed an affidavit of completeness. You have nothing else to give.
If you believe your spouse is holding documents from you, you still must find those documents via subpoena or further investigation of your spouse. Upon finding the documents and proof that they were in the party’s control, you can exact appropriate punishment for falsely alleging they had properly complied with discovery.
To learn more about discovery and the Illinois divorce process, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.