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Developments in Electronic and Financial Discovery

| Mar 12, 2021 | business law |

By Holly F. Rumiano
Law Clerk
Storm & Piscopo, P.C.

Generally, the scope of discovery in Illinois requires full disclosure of any document or tangible thing that is relevant to the subject matter. Ill. S. Ct. R. 201, 214. When a party is particularly resistant to discovery, the trial courts have the broad authority to control discovery. In Shamrock v Wroblewski, 2019 IL App (1st) 182354, the Illinois First District Appellate Court recently held that in cases involving voluminous and complex financial discovery, the court appointment of a “facilitator” was appropriate and advantageous to the parties. A facilitator appointed by the court acts as a neutral third party in supervising discovery to ensure timely and comprehensive production, and to examine the records produced to determine their relevance. Shamrock, 2019 IL App (1st) 182354, ¶ 41.

Of course, there are limits to discovery. Discovery cannot be overly burdensome. It should be proportional to the needs of the case, which means a trial court can always decide whether the burden of a proposed discovery request will outweigh the benefit of compelling the party to produce. Discovery of electronically stored information (“ESI”) historically could trigger the “overly burdensome” objection, because it often cast too wide of a net or was viewed as being too intrusive. However, as society becomes more technologically advanced and more information is being stored electronically, it raises the important question of whether and to what extent electronically stored records and information will be discoverable and whether the “overly burdensome” objection for discovery of those records is no longer viable.

The Shamrock court answered that question by holding that it is no longer presumptively overly burdensome for parties to produce electronically stored bank records or QuickBooks files. The Court noted that by omission, under revised Illinois Supreme Court Rule 201(b)(4), that information is not of the type the drafters of our rules believed to be overly burdensome for parties to produce. Shamrock, 2019 IL App (1st) 182354, at ¶ 42 (citing Ill. S. Ct. R. 201(c)(3), Committee Comments (rev. May 29, 2014) (listing presumptively non-discoverable types of electronically stored information)).  And as the Shamrock decision explains, courts may employ a facilitator to assist them in determining whether documents are discoverable including specifically such electronically stored financial records.

Businesses, corporations, limited liability companies and partnerships in Illinois should be aware of this rapidly changing landscape regarding financial and electronic discovery.

Storm & Piscopo, P.C. provides both litigation and business planning legal services to Illinois businesses.

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