Presuit Discovery and Evidence Preservation in Illinois Circuit Courts

Kane County Bar Association Bar Briefs 24 (Sept. 2018)

4 Pages Posted: 9 Oct 2018

See all articles by Jeffrey A. Parness

Jeffrey A. Parness

Northern Illinois University - College of Law

Jessica Theodoratos

Northern Illinois University, College of Law, Students

Date Written: September 12, 2018

Abstract

Circumstances supporting presuit equitable discovery bills in Illinois are illustrated by a few recent Illinois circuit court proceedings. In one, after Dr. David Dao, a United Airlines passenger was removed by Chicago officers from a plane in April, 2017, his attorneys soon thereafter sought an “emergency bill of discovery” seeking evidence preservation involving, e.g., any surveillance video recording on passenger boarding; the passenger list; the employee and crew list; and all incident reports. In another, following the death of two people in a condominium complex fire in January, 2013, the widow of one decedent obtained an emergency bill of discovery about a week later allowing a private investigation as well as and ordering preservation of documents (including inspection and maintenance records), recordings, and photos. And in a third, in July, 2012, following a hospital and a foundation’s alleged failure to maintain properly frozen human sperm samples in April, 2012, a Cook County chancery court judge ordered respondents to preserve and release documents related to the failure upon the filing by prospective plaintiffs of “an emergency bill of discovery.”

Such equitables bill of discovery aimed at evidence preservation are exercises of auxiliary or ancillary jurisdiction that presupposes the potential exercise of primary jurisdiction by some tribunal later. Today they should be available at least to secure an evidence preservation order where there is some concern by a petitioner about later evidence availability where the respondent allegedly has a duty to preserve, which can arise in Illinois under either tort or discovery law principles. They should also be available for those seeking a judicial declaration that there are no applicable preservation duties though there has been an evidence preservation demand.

To remove uncertainties regarding such equitable bills and to unify trial court practices, a new Illinois Supreme Court Rule is needed. Such a rule should set out procedural and substantive requisites for presuit discovery initiatives aimed at evidence preservation.

Keywords: evidence, discovery, civil procedure, spoiliation, deposition, tort, Illinois Equitable Bill of Discovery, chancery, preservation duty

Suggested Citation

Parness, Jeffrey A. and Theodoratos, Jessica, Presuit Discovery and Evidence Preservation in Illinois Circuit Courts (September 12, 2018). Kane County Bar Association Bar Briefs 24 (Sept. 2018), Available at SSRN: https://ssrn.com/abstract=3248479

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

Jessica Theodoratos

Northern Illinois University, College of Law, Students ( email )

DeKalb, IL
United States

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