What Discovery Is Allowed In A Punitive Damages’ Case In Illinois?”

What Discovery Is Allowed In A Punitive Damages’ Case In Illinois?”

By: Jonathan W. Goken

Johnson & Bell, Ltd.

             Defendants in Illinois are finding it increasingly more common for plaintiffs seeking punitive damages to dig into the defendants' financial status and net worth through discovery.   Because of the personal nature of such requests, defense attorneys constantly try to protect their clients from having to disclose this information by objecting to such requests.  This begs the question, "In Illinois, do defense attorneys actually have a 'leg to stand on' when contesting the requested disclosure of their client's financial health in a punitive damages case?"  A recent review of Illinois case law on this issue suggests that they probably do not.

            In the mid 1990's, the Illinois appellate court, in Pickering v. Owens-Corning Fiberglas Corp, was confronted with the issue of what was discoverable in a case involving a claim for punitive damages.  265 Ill.App. 3d 806 (5th Dist. 1994).    While addressing this issue, the Pickering court provided a brief overview of Illinois' discovery requirements, as set forth in Illinois Supreme Court Rule 201, and highlighted the fact that the scope of discovery in this State is limited to "any matter relevant to the subject matter involved in a pending action."  Id. at 823.  Notably, the court pointed out that "relevant information" does not only include information that is admissible at trial, but also encompasses information which could reasonably lead to the production of admissible evidence at trial. Id. Not surprising, the courts have "considerable latitude" in deciding what constitutes relevant information for discovery purposes.  Id.

           In Illinois, it is well established that "evidence of a defendant's net worth and pecuniary position may be introduced in a case in which punitive damages [are] an issue."  Id. citing Fopay v. Noveroske, 31 Ill.App. 3d 182 (5th Dist. 1975).   Hence, plaintiffs are permitted to seek information, through discovery, which is reasonably calculated to discovering defendant's net worth or fiscal wellbeing.   Id.   Notably, while some of the information sought may ultimately be held inadmissible for trial purposes, the information is nevertheless discoverable so long as the information sought may eventually lead to admissible evidence at trial.  Id.

            Illinois does not stand alone on this issue.  Many, if not most, jurisdictions allow discovery into a defendant's financial condition in cases seeking recovery for punitive damages.   Moreover, most courts in this county, Illinois included, "do not require a prima facie showing of merit on a claim for punitive damages before permitting discovery of a defendant's financial net worth."  Platcher v. Heath Professionals, Ltd., 2007 U.S. Dist. LEXIS 68838 (C.D. Ill. 2007).

            In short, Illinois defendants placed in the predicament of having to defend against cases seeking punitive damages, should anticipate the very real possibility that their opposition may eventually end up seeking the disclosure of information which relates to the defendant's personal wealth.  Provided Illinois' history of considering this information "relevant," defendants should also, unfortunately, expect the courts to compel them to release this information during discovery.


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