The Illinois motion to compel: fees turn on a finding, not an exception

Most states make a fee award the default when a motion to compel is granted, subject to an escape if the opposition was substantially justified. Illinois reverses the structure.

Fees follow only if "the court finds that the refusal or failure was without substantial justification." No finding, no award. And the mirror applies to you: if your motion is denied and the court finds it was made without substantial justification, the award runs the other way.

That single drafting choice changes what belongs in the motion. You are not asking the court to apply a default — you are asking it to make a finding, and you have to give it the material.

The motion, and the fee test

Ill. S. Ct. R. 219(a):

Refusal to Answer or Comply with Request for Production. If a party or other deponent refuses to answer any question propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer. Thereafter, on notice to all persons affected thereby, the proponent of the question may move the court for an order compelling an answer. If a party or other deponent refuses to answer any written question upon the taking of his or her deposition or if a party fails to answer any interrogatory served upon him or her, or to comply with a request for the production of documents or tangible things or inspection of real property, the proponent of the question or interrogatory or the party serving the request may on like notice move for an order compelling an answer or compliance with the request. If the court finds that the refusal or failure was without substantial justification, the court shall require the offending party or deponent, or the party whose attorney advised the conduct complained of, or either of them, to pay to the aggrieved party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney's fees. If the motion is denied and the court finds that the motion was made without substantial justification, the court shall require the moving party to pay to the refusing party the amount of the reasonable expenses incurred in opposing the motion, including reasonable attorney's fees.

Both limbs are "shall" once the finding is made — but the finding is the gate. Ask for it expressly, and set out why the refusal lacked justification, rather than assuming the outcome carries the fees.

Note the reach on the paying side: "the offending party or deponent, or the party whose attorney advised the conduct complained of, or either of them."

And note the deposition mechanics at the front: the examination "shall be completed on other matters or adjourned, as the proponent of the question may prefer" before you move.

The refusal-to-admit provision is unusually favorable

Rule 219(b):

Expenses on Refusal to Admit. If a party, after being served with a request to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter of fact, the requesting party may apply to the court for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making the proof, including reasonable attorney's fees. Unless the court finds that there were good reasons for the denial or that the admissions sought were of no substantial importance, the order shall be made.

Here the structure flips back: "the order shall be made" unless one of only two exceptions applies — good reasons for the denial, or an admission of no substantial importance.

Most states list four exceptions. Illinois lists two, and omits the common escape that the denying party had reasonable ground to believe it might prevail. That makes a sworn denial in Illinois a more expensive thing to get wrong.

This pairs directly with the request-to-admit practice covered in Illinois requests to admit, where the consequences of a defective response are already severe.

Sanctions for non-compliance

Rule 219(c):

Failure to Comply with Order or Rules. If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision of part E of article II of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:

(i) That further proceedings be stayed until the order or rule is complied with; (ii) That the offending party be debarred from filing any other pleading relating to any issue to which the refusal or failure relates; (iii) That the offending party be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue; (iv)That a witness be barred from testifying concerning that issue; (v) That, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that the offending party's action be dismissed with or without prejudice; (vi)That any portion of the offending party's pleadings relating to that issue be stricken and, if thereby made appropriate, judgment be entered as to that issue; or (vii) That in cases where a money judgment is entered against a party subject to sanctions under this subparagraph, order the offending party to pay interest at the rate provided by law for judgments for any period of pretrial delay attributable to the offending party's conduct.

Two features have no real counterpart elsewhere.

The rule reaches beyond the party. It applies to "any person at the instance of or in collusion with a party" — so a non-party acting on a party's behalf is within it.

Sanction (vii) is interest for delay. Where a money judgment is entered against a sanctioned party, the court may order judgment-rate interest for any period of pretrial delay attributable to that party's conduct. That converts foot-dragging into a quantifiable cost, and it is worth asking for in a case that has been slowed deliberately.

The threshold is "unreasonably fails to comply", which is a lower bar than wilfulness.

Fees, penalties and the court's own initiative

Following the list:

In lieu of or in addition to the foregoing, the court, upon motion or upon its own initiative, may impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred as a result of the misconduct, including a reasonable attorney fee, and when the misconduct is wilful, a monetary penalty. When appropriate, the court may, by contempt proceedings, compel obedience by any party or person to any subpoena issued or order entered under these rules.

Three things: the court may act on its own initiative, the sanction may fall on the attorney, and where the misconduct is wilful the court may add a monetary penalty on top of expenses.

Sanctions survive dismissal

Also in (c):

Notwithstanding the entry of a judgment or an order of dismissal, whether voluntary or involuntary, the trial court shall retain jurisdiction to enforce, on its own motion or on the motion of any party, any order imposing monetary sanctions, including such orders as may be entered on motions which were pending hereunder prior to the filing of a notice or motion seeking a judgment or order of dismissal.

A party cannot escape a monetary sanction by taking a voluntary dismissal. The court retains jurisdiction to enforce it, including on motions that were pending before the dismissal was sought.

That connects directly to Illinois's voluntary dismissal and refiling practice — see dismissal for want of prosecution, which covers the one-year refiling right under 735 ILCS 5/13-217.

The court must explain itself

The last sentence of (c):

Where a sanction is imposed under this paragraph (c), the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.

"With specificity", in the order or a separate written order. If you are sanctioned without that, raise it.

Abuse of discovery

Rule 219(d) adds a remedy aimed at the requesting side:

Abuse of Discovery Procedures. The court may order that information obtained through abuse of discovery procedures be suppressed.

Suppression of improperly obtained information is available in Illinois as a discrete remedy — worth knowing if the problem is not that you were refused, but that the other side overreached.

Before you file

1. Confirm the discovery was properly served and the response period has run — see Illinois discovery deadlines for the 28-day periods and the interrogatory limits.
2. Give notice to all persons affected, which the rule requires.
3. Complete or adjourn a deposition before moving.
4. Ask for the finding, not just the order. Fees depend on a finding of no substantial justification.
5. Consider (c)(vii) — interest for pretrial delay — where the conduct has genuinely slowed the case.

If the dispute is about a subpoena rather than a party's discovery response, see quashing an Illinois subpoena.

How Illinois compares

A short checklist

1. Build the motion around the finding. Set out precisely why the refusal lacked substantial justification.
2. Remember the mirror. A denied motion found to lack justification costs you fees.
3. Name the advising attorney where the rule's language fits the facts.
4. Use Rule 219(b) after proving a denied admission — only two exceptions apply.
5. Ask for interest under (c)(vii) where delay has been deliberate and a money judgment is in prospect.
6. Point to the collusion language if a non-party is doing the withholding.
7. Expect the court to state its reasons with specificity if it sanctions anyone.
8. Do not assume a voluntary dismissal ends it — the court keeps jurisdiction over monetary sanctions.

Where these rules live

• Ill. S. Ct. R. 213 — Written Interrogatories to Parties
• Ill. S. Ct. R. 214 — Discovery of Documents and Tangible Things
• Ill. S. Ct. R. 216 — Admission of Fact or of Genuineness of Documents
• Ill. S. Ct. R. 219 — Consequences of Refusal to Comply

This page explains what the rules say. It isn't legal advice, and what makes a refusal substantially justified is developed in case law this site doesn't cover.