Consider using the “respondent in discovery” statute in business litigation

Illinois has a statute that permits a plaintiff to name persons or entities as respondents in discovery. See 735 ILCS 5/2-402. The standard for naming any respondent is that the party is “believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action.”

Properly served respondents must “respond to discovery by the plaintiff in the same manner as are defendants.”

If discovery reveals “probable cause” to add any respondent, the respondent may be converted to the status of defendant, on motion of the plaintiff. Additionally, any respondent may elect to be included as a defendant.

A plaintiff has six months to convert a respondent in discovery to a defendant, with one possible 90-day extension, “even though the time during which an action may otherwise be initiated against him or her may have expired during such 6 month period.”

The respondent-in-discovery statute most commonly is used in tort actions, where, for example, plaintiffs wants to identify responsible parties in medical malpractice or personal injury cases. However, the procedure can be valuable in business and other commercial cases, such as shareholder disputes, enforcement of covenants, breach of contract, and injunctions. Consider past cases where you have dealt with threshold motions to dismiss, based on an alleged lack of facts. By using Section 5/2-402 and carefully crafted discovery requests, you can develop a firm case and avoid pitfalls down the road. Although this procedure does not make sense in all situations, remember that this powerful tool is available when needed.