The Common Methods of Discovery

By Scott Tzinberg

During a divorce case, it is not uncommon for both parties to conduct some form of discovery. This means that a party makes a formal request to the opposing party with the goal of obtaining more information relevant to the case. Discovery can take many forms. Here is a summary of the most common methods of discovery.


Interrogatories are questions that one must respond to in writing. These questions usually seek information about income, assets, debts and other historical financial information about the other party. The responding party submits written responses and executes an affidavit that the questions have been answered accurately and truthfully. The Illinois Supreme Court has created a set of standard interrogatories that can be used in divorce matters. If you do not use these standard interrogatories, you must submit Interrogatories that are consistent with Supreme Court Rule 213. Here is a link to what the standard interrogatories look like.

Request to Produce Documents

Unlike Interrogatories, which seek written answers to questions, a request to produce documents, governed by Supreme Court Rule 214, is a discovery tool where one party is requesting physical documents from the other party. Similar to interrogatories, these requests are usually related to financial matters such as bank/credit card statements, retirement plan information, paystubs and tax returns. The responding party must produce all documents in the request that are within their control and possession.

A person served with a request to produce documents has a continuing responsibility (while the case is pending) to supplement their responses with additional documents as they become available.

Subpoena (for records)

A party involved in a divorce matter can cause a subpoena to be issued and served on a third party. A subpoena is a legally authorized request that requires a third party to respond by producing documents. A third party may have a basis to object to the subpoena but if no objection is raised and the subpoena is issued properly, then the documents must be produced. For example, one person may believe their spouse has not disclosed all of their bank accounts in their responses to interrogatories and a request to produce documents. That person then may send a subpoena to a bank and request that the bank produce all information about any bank accounts in the spouse’s name.

A subpoena for records can also be served on other third parties who are connected to the pending case. For example, a subpoena can be issued to an accountant who prepares taxes for an individual or a business partner of the spouse.

When issuing a subpoena for records, the requestor must include an initial payment and perhaps an additional payment later when the documents are produced. This payment is applied to the copying and research the third party must perform in order to comply with the subpoena.


A deposition is a discovery tool where you request either the other party or a third party related to the case to personally appear at an agreed location to answer questions under oath. A court reporter will be present to swear in the witness and record the deposition. The person being deposed (the deponent) may have an attorney represent them during the deposition.

Unless agreed or ordered by the Court, a deposition cannot go for longer than three hours. During a deposition, the deponent is asked questions about various issues related to the case. The questions posed do not necessarily have to be relevant to the case. The purpose of a discovery deposition is to delve into areas that may lead to relevant information related to the case.

When a deposition is taken, documents that were obtained pursuant to a request to produce or from a subpoena can be presented as exhibits and questions asked about those documents.

During a deposition, the requesting party and his attorney are present, as are the deponent, their attorney and a court reporter. The person requesting the deposition is usually responsible for paying the cost of a court reporter. The reporter, upon request, will prepare a transcript of the testimony given at the deposition. A deposition transcript can be later used during a trial to impeach a witness who later testifies inconsistently from their testimony during the deposition.


Each area of discovery comes with different costs. The most costly is the deposition. You are incurring the cost for your attorney to prepare for and appear at the deposition. You also will incur the cost of the court reporter and the expense of having the reporter prepare a transcript. The least costly are the interrogatories, as your attorney can usually issue the format approved by the Supreme Court and when the other party complies, your attorney will just need to spend a short time reviewing all the responses.

Failure to comply

Failure to comply with discovery can result in sanctions, the most severe being that a court may hold the noncompliant person in default and strike their pleadings in the case. The result is that the party who issued the discovery may be allowed to proceed and request almost any reasonable terms for the divorce without the other party having an opportunity to present any testimony. More likely the penalty will be either a financial award or barring certain testimony or exhibits at trial.

Categories: Divorce and Separation.