Rule 415. Regulation of Discovery

Rule 415. Regulation of Discovery

(a) Investigations Not to be Impeded. Except as is otherwise provided as to matters not

subject to disclosure and protective orders, neither the counsel for the parties nor other prosecution

or defense personnel shall advise persons having relevant material or information (except the

accused) to refrain from discussing the case with opposing counsel or showing opposing counsel

any relevant material, nor shall they otherwise impede opposing counsel’s investigation of the

case.

(b) Continuing Duty to Disclose. If, subsequent to compliance with these rules or orders

pursuant thereto, a party discovers additional material or information which is subject to

disclosure, he or she shall promptly notify the other party or his or her counsel of the existence of

such additional material, and if the additional material or information is discovered during trial,

the court shall also be notified.

(c) Custody of Materials. Any materials furnished to an attorney pursuant to these rules shall

remain in his or her exclusive custody unless the court authorizes dissemination pursuant to this

rule, shall be used only for the purposes of conducting his or her side of the case, and shall be

subject to such other terms and conditions as the court may provide. Upon motion of the attorney,

the court shall, within 5 court days, enter an order allowing the attorney to provide a copy of the

discovery to the defendant unless good cause is shown why the discovery should not be furnished

to the defendant

all be used only for the purposes of conducting his or her side of the case, and shall be

subject to such other terms and conditions as the court may provide. Upon motion of the attorney,

the court shall, within 5 court days, enter an order allowing the attorney to provide a copy of the

discovery to the defendant unless good cause is shown why the discovery should not be furnished

to the defendant. Absent the court order allowing otherwise, materials furnished to a defendant by

a defense attorney pursuant to these rules shall not contain any contact information for the

witnesses, mental health counselors or victim’s advocates, or other personal identifiers of such

witnesses such as addresses; dates of birth; phone numbers; Social Security numbers; financial

institution information; driver’s license and state identification numbers; checking, credit, or debit

card information; e-mail address or other social media contacts; or medical or mental health

records and shall not contain photographs or videos of victims of sexual assault, sexual abuse, or

child pornography.

(d) Protective Orders. If, when furnishing any material to an attorney or a defendant pursuant

to these rules, the party furnishing the materials files for a protective order to restrict or defer

further disclosures, the attorney or defendant shall not furnish to anyone the materials identified in

the motion until the motion for a protective order is ruled upon by the court. Upon a showing of

cause, the court may at any time order that specified disclosures or redisclosures be

restricted, conditioned upon compliance with protective measures or deferred, or make such other

order as is appropriate, provided that all material and information to which a party is entitled is

disclosed in sufficient time to permit counsel or the defendant to make beneficial use of the

disclosure.

showing of

cause, the court may at any time order that specified disclosures or redisclosures be

restricted, conditioned upon compliance with protective measures or deferred, or make such other

order as is appropriate, provided that all material and information to which a party is entitled is

disclosed in sufficient time to permit counsel or the defendant to make beneficial use of the

disclosure.

(e) Excision. When some parts of certain material are discoverable under these rules, and other

parts not discoverable, as much of the material should be disclosed as is consistent with the rules.

Excision of certain material and disclosure of the balance is preferable to withholding the whole.

Material excised pursuant to judicial order shall be sealed, impounded and preserved in the records

of the court, to be made available to the reviewing court in the event of an appeal.

(f) In Camera Proceedings. Upon request of any person, the court may permit any showing

of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera.

A record shall be made of such proceedings. If the court enters an order granting relief following

a showing in camera, the entire record of such showing shall be sealed, impounded, and preserved

in the records of the court, to be made available to the reviewing court in the event of an appeal.

(g) Sanctions.

(i) If at any time during the course of the proceedings it is brought to the attention of the

court that a party has failed to comply with an applicable discovery rule or an order issued

pursuant thereto, the court may order such party to permit the discovery of material and

information not previously disclosed, grant a continuance, exclude such evidence, or enter such

other order as it deems just under the circumstances.

the course of the proceedings it is brought to the attention of the

court that a party has failed to comply with an applicable discovery rule or an order issued

pursuant thereto, the court may order such party to permit the discovery of material and

information not previously disclosed, grant a continuance, exclude such evidence, or enter such

other order as it deems just under the circumstances.

(ii) Wilful violation by counsel of an applicable discovery rule or an order issued pursuant

thereto may subject counsel or the defendant to contempt of court or other appropriate

sanctions by the court.

Effective October 1, 1971; amended Oct. 23, 2020, eff. immediately.

Committee Comments

(Revised Oct. 23, 2020)

Paragraph (a). One barrier to pretrial investigation and meaningful discovery procedures is the

practice of some attorneys of advising witnesses not to cooperate with opposing counsel. This

paragraph is included to provide that discovery shall not be frustrated by improper conduct of

counsel or the various agents of counsel.

Paragraph (b) is modeled after Federal Rule of Criminal Procedure 16(c). This paragraph is

intended to permit thorough preparation and to minimize paperwork and delay. After discovery

has been conducted as provided, any additional material or information acquired by either side

which is subject to disclosure should be automatically and promptly disclosed. The notification

required by this paragraph is intended to make such disclosures as simple and easy as possible.

Paragraph (c). This paragraph recognizes that most discovery in the overwhelming majority of

cases has little to no information that is of any interest to anyone except the parties and their

counsel. Likewise, the paragraph recognizes the compelling need that may arise for defense

counsel to share discovery in whole or in part with their client for their client to review without

supervision of counsel. The choice of how to review discovery with a client is one best left to the

professional and ethical decision of counsel

n that is of any interest to anyone except the parties and their

counsel. Likewise, the paragraph recognizes the compelling need that may arise for defense

counsel to share discovery in whole or in part with their client for their client to review without

supervision of counsel. The choice of how to review discovery with a client is one best left to the

professional and ethical decision of counsel. Upon a motion by defendant’s attorney the court shall

allow the furnishing of discovery to the defendant unless the State objects, at which time the court

shall weigh the benefit to the defense against any potential harm or danger raised by the

prosecution and enter an appropriate order. This facilitates more effective and efficient

representation of defendant by allowing the exchange of discovery between a defendant and the

defendant’s attorney. At the same time, in order that needs of exceptional cases be recognized, the

rule provides that the disclosing party may seek a protective order to fit specific circumstances of

cases. After objection by the State and before granting a blanket prohibition on furnishing

discovery to a client, the court shall consider how an order granting limited disclosure of discovery

can be accomplished. It should be noted that this paragraph also applies to the State. Nothing in

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this paragraph should be interpreted to prevent counsel from having tests performed by experts on

materials furnished by opposing counsel or from having experts examine reports received from

opposing counsel. Tangible objects, such as guns, knives, clothing, not subject to duplication but

furnished for purposes of testing, etc., should be returned to the furnishing party when such testing

or inspection is completed. If not returned routinely the last phrase permits the court to so order,

in addition to any other terms and conditions provided.

Paragraph (d)

xamine reports received from

opposing counsel. Tangible objects, such as guns, knives, clothing, not subject to duplication but

furnished for purposes of testing, etc., should be returned to the furnishing party when such testing

or inspection is completed. If not returned routinely the last phrase permits the court to so order,

in addition to any other terms and conditions provided.

Paragraph (d). In order that legitimate needs of exceptional cases will not shape discovery

policy and result in denial of discovery in all cases, this paragraph is designed to provide sufficient

flexibility to meet such exceptional needs. This paragraph, adapted from Federal Rule of Criminal

Procedure 16(e), permits application by the party concerned to the court for a protective order

adjusting the time, place, recipient, or use of the disclosures as are necessary in a particular case.

It is anticipated that it will ordinarily be needed with respect to those matters for which discovery

is mandatory, rather than matters where the court has discretion in allowing discovery under Rule

412(h). While the protective order is designed to permit flexibility, it is to be used under a policy

of as full and as early discovery as possible; it is not intended to permit denial of disclosure,

although it may result in deferral until a later time. The disclosure must be made in time for a party

to make beneficial use of it. Normal use of the protective order will be made when there is

substantial risk to any person of physical harm, intimidation, bribery, or economic reprisals which

outweigh any usefulness of disclosure to the defendant or State. This rule also establishes

safeguards to prevent the expeditious redisclosure of discovery by an attorney to a defendant prior

to entry of a protective order. Once a protective order is sought by motions, redistribution of the

materials is automatically restricted until the court rules on the motion for a protective order

isals which

outweigh any usefulness of disclosure to the defendant or State. This rule also establishes

safeguards to prevent the expeditious redisclosure of discovery by an attorney to a defendant prior

to entry of a protective order. Once a protective order is sought by motions, redistribution of the

materials is automatically restricted until the court rules on the motion for a protective order. At

that hearing the court could weigh the need and efficiency of disclosure against legitimate concerns

in cases such as those involving sexual assault or domestic violence that victims and witnesses feel

safe and not be subject to harassment or embarrassment.

Paragraph (e). Occasions will arise when material will contain information which is both

discoverable and nondiscoverable. This paragraph recognizes the right of a party to excise, or have

excised, the nondiscoverable portion. The procedure under this paragraph is different from that

under the Jencks Act, 18 U.S.C. §3500(c), and under present Illinois practice, only in giving

approval to a party excising portions of material without court supervision. Approval of counsel’s

independent conduct is consistent with the purpose of expediting the discovery process, but it is

expected that in many cases counsel will seek a decision by the court, and that, in any event, he

will be held accountable for excisions, if they are challenged by opposing counsel. The only change

from the ABA standards is the requirement that the material excised pursuant to a judicial order

not only be sealed, but also impounded and preserved.

Paragraph (f) provides for preserving the confidentiality of material at such times as the trial

court is called upon to decide whether to require its disclosure

accountable for excisions, if they are challenged by opposing counsel. The only change

from the ABA standards is the requirement that the material excised pursuant to a judicial order

not only be sealed, but also impounded and preserved.

Paragraph (f) provides for preserving the confidentiality of material at such times as the trial

court is called upon to decide whether to require its disclosure. In issuing protective orders under

paragraph (d), allowing excision of portions of material under paragraph (e), or in otherwise

deciding that certain material is not subject to disclosure, the trial court must have an opportunity

to examine, in private, the particular material as well as the reasons for nondisclosure. The purpose

of issuing such rulings would often be defeated if the hearing were to be held in open court. To

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protect the litigants from error by the trial court, provision is made for the making and preserving

of a record of all such proceedings for purposes of appeal.

Through paragraph (g), the committee intended to emphasize that these discovery rules must

be enforced. Rather than attempt to provide specific sanctions for specific violations, the

committee deemed it wise to leave the sanctions to the discretion of the trial court. This paragraph

does contain one provision not present in the ABA standards. If justified under the circumstances,

the court may exclude evidence which a party has failed to disclose under applicable discovery

rules. The committee felt that such a device is a useful sanction, and that even though some

problems may arise in applying it against the accused, the sanction can be applied in some

situations. In this regard this paragraph conforms to Federal Rule of Criminal Procedure 16(g),

and further guarantees the expedition of the discovery process. The sanctions listed are not

exclusive.

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