Respondents In Discovery - April 6, 2006

In 1993, the Robinson v. Johnson case held that a trial court does not have discretion to extend the 6-month statutory window allowed for converting respondents-in-discovery to defendants. The court's decision was to be applied prospectively.

On March 31, 2006, in Brown v. Jaimovich, the Court ruled that the Robinson decision applies to cases filed on and after September 26, 2003. For example, if a plaintiff names Dr. Smith as a respondent in discovery on 09/26/03. The plaintiff has until 03/26/04 to convert Dr. Smith to a defendant. If the plaintiff files a motion to extend the time to convert Dr. Smith on 03/15/04 and the motion is not granted until 06/26/04, then the Robinson decision applies and any extensions of time allowed are improper under Robinson.

After January 1, 2006, the respondent in discovery statute has been amended as follows: "[General Rule] A person or entity named as a respondent in discovery in any civil action may be made a defendant in the same action at any time within 6 months after being named as a respondent in discovery, even though the time during which an action may otherwise be initiated against him or her may have expired during such 6 month period. [Exceptions] An extension from the original 6-month period for good cause may be granted only once for up to 90 days for (i) withdrawal of plaintiff's counsel or (ii) good cause. Notwithstanding the limitations in this Section, the court may grant additional reasonable extensions from this 6-month period for a failure or refusal on the part of the respondent to comply with timely filed discovery." 735 ILCS 5/2-402 (Supp. 2006).

Bottom Line: plaintiffs have 6 months to convert a respondent in discovery to a defendant (assuming the statute of limitations has expired). Only one extension will be allowed for no more than 90 days if (1) plaintiff's counsel withdraws from the case; or (2) other good cause (based on Robinson this will likely be a very hard burden to meet). The exception to the exception is additional time will be allowed if the respondent in discovery fails to respond to timely filed discovery requests.