Legal Question in Civil Litigation in Illinois

Discovery re-started in a refiled case?

I see from the website that two other lawyers have responded to your question. Please permit me to offer the following:

The second case starts anew. A new Complaint is required (even if it is the same verbatim), with a new Answer, and new Discovery, etc. The first case places no limitations on the second filing, e.g. you could have answered the complaint the first time, but sought to dismiss the second time.

Now, once having said that, there are agreements (stipulations) between the parties which might sweep away the need to re-do one thing or another, and a party or witness can seek help from a court to limit discovery (court can enter an order �denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression�)(and the court can do this without be requested), and the court itself may (and probably will) accelerate the case management dates which would speed up discovery.

Of course, even if discovery is redone, any statement under oath in the first case is still a statement under oath. And it goes without saying that the judge is not completely blind to prior proceedings (example: the defendant loses a long and protracted motion to dismiss in case one, and then files the same motion in case two � one way or another, the plaintiff�s lawyer will make sure the judge knows that this road has been traveled before).

So yes, in the absence of deliberate action to change things (by court order, sua sponte, or on motion of the parties or a witness; or by stipulation), discovery starts over from the start. In actual practice however, in most cases discovery is not redone, and discovery from the first filing is adopted by the court as discovery in the second filing.

Re: voluntary dismissal

Generally in refiled cases the parties stipulate that the completed discovery need not be redone. I think the law is that in the absence of such a stipulation, the discovery automatically transfers. If a party wants to redo any aspect of the discovery, it should have to explain to the court why.

Re: voluntary dismissal

You may file a motion with the Court to adopt previous discovery. Remember to make sure that you go over the previous discovery to make sure it was complete. If you need to supplement any disclosure, this would be your chance. Once the previous completed discovery has been adopted, discovery will be closed.

I hope this helps,

Nima Taradji