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Presuit Discovery and Evidence Preservation in Illinois Circuit Courts

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Document pages: 4 pages

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.

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