Rule 191(b) Revisited

In 2016, I wrote an article providing an overview of Illinois Supreme Court Rule 191(b), which is still little-known and underutilized. Now that ten years have gone by, the purpose of this article is to again provide a brief overview of the rule and discuss how courts have recently interpreted it. The text of the rule itself has not been amended.

When an attorney is faced with the challenge of responding to a 2-619 motion to dismiss or motion for summary judgment, he or she may want a continuance to conduct additional discovery to respond. Illinois Supreme Court Rule 191 (b) governs this situation, as follows:

(b) When Material Facts Are Not Obtainable by Affidavit. If the affidavit of either party contains a statement that any of the material facts which ought to appear in the affidavit are known only to persons whose affidavits affiant is unable to procure by reason of hostility or otherwise, naming the persons and showing why their affidavits cannot be procured and what affiant believes they would testify to if sworn, with his reasons for his belief, the court may make any order that may be just, either granting or refusing the motion, or granting a continuance to permit affidavits to be obtained, or for submitting interrogatories to or taking the depositions of any of the persons so named, or for producing documents in the possession of those persons or furnishing sworn copies thereof. The interrogatories and sworn answers thereto, depositions so taken, and sworn copies of documents so furnished, shall be considered with the affidavits in passing upon the motion.

An affidavit must contain: (1) a statement that material facts are unavailable due to hostility or otherwise; (2) the names of the people the affiant wants to depose; (3) a showing as to why affidavits could not be procured from those people; (4) a statement as to the expected testimony from those people; (5) the basis for the affiant’s belief that those persons will so testify; and (6) the affiant should be a party to the action.

The following are the notable cases interpreting Rule 191(b) since 2016:

In Gabriel v. Alton Memorial Hospital, No. 5-24-0729, 2025 WL 3299764 (Ill. App. 5th Nov. 26, 2025), the court held that the plaintiff’s  Rule 191(b) affidavit responding to a motion for summary judgment failed to comply with Rule 191(b) because it was too general. Specifically, she failed to name the employees she wanted to depose or what their knowledge of the event at issue was. Gabriel v. Alton Memorial Hospital, No. 5-24-0729, 2025 WL 3299764 at *398 (Ill. App. 5th Nov. 26, 2025).

Kim v. State Farm Mutual Automobile Insurance Company, 199 N.E.3d 737 (Ill. App. 1st June 30, 2021).  The plaintiff’s affidavit responding to a motion for summary judgment failed to comply with Rule 191(b) because the claims at issue related to Kim’s personal knowledge, rather than information she could only gain from third party depositions. Id. at 753. Additionally, the plaintiff’s affidavit was far too broad, failing the rule’s requirements for specificity of witnesses and their predicted testimonies. Id. at 754-55.

National Tractor Parts Inc. v. Caterpillar Logistics Inc., 171 N.E.3d 1 (Ill. App. 2nd Dis. Feb. 28, 2020).  After several years of litigation regarding the Illinois Trade Secrets Act, CLI moved for summary judgment alleging NTP had failed to identify anything that could be deemed a trade secret and that they owned the materials NTP claimed CLI was misappropriating. National Tractor Parts Inc. v. Caterpillar Logistics Inc., 171 N.E.3d at 8, 10. The trial court granted summary judgment after determining NTP’s Rule 191(b) affidavits requesting depositions of CLI employees were insufficient. Id. at 10-11. On appeal, the court disagreed with NTP’s argument that they did not need to meet the standards of Rule 191(b) because CLI had filed a Celotex-type motion for summary judgment, as they had stated affirmative defenses. Id. at 18. The court also noted the 4-year length of litigation as reason to deny NTP’s request for additional time. Id. at 20.

In U.S. Bank Nat’l Ass’n as Tr. for Registered Holders of First Franklin Mortg. Loan Tr., Mortg. Loan Asset-Backed Certificates, Series 2007-FF2 v., 188 N.E.3d 713 (Ill. App. 1st Feb. 7, 2020), the appellate court held that where additional discovery would only be material to affirmative defenses, already appropriately stricken by the court, a party is not entitled to any additional discovery. U.S. Bank Nat’l Ass’n as Tr. for Registered Holders of First Franklin Mortg. Loan Tr., Mortg. Loan Asset-Backed Certificates, Series 2007-FF2, 188 N.E.3d at 728. The appellate court also agreed with the trial court that the non-movant’s Rule 191(b) affidavit failed to indicate the material facts that would come to light in discovery. Id. at 720, 728.

In MEP Construction, LLC v. Truco MP, LLC, 125 N.E.3d 1130 (Ill. App. 1st Feb. 8, 2019),  MEP did not provide an affidavit requesting more time for discovery when faced with a motion for summary judgment or even ask the court to pause the case until depositions had been complete. MEP Construction, LLC v. Truco MP, LLC, 125 N.E.3d at 1138. Instead, MEP merely complained that there was insufficient discovery at the time of summary judgment and that oral discovery “most likely would” allow them to respond. Id. at 1137. The court quoted a series of cases supporting a quick denial of MEP’s appeal: ‘If a party fails to attach a Rule 191(b) affidavit to its pleading to address its need for further discovery, then it may not subsequently “seek reversal of the trial court’s order on the basis that it was denied important discovery.”’ Id. at 1138. Given that MEP did not file a Rule 191(b) affidavit, it was therefore barred from raising this issue on appeal. Id.

Abramson v. Marderosian, 119 N.E.3d 1 (Ill. App. 1st Nov. 30, 2018). Abramson’s motion requesting additional time for discovery, in response to a motion for summary judgment, was accompanied by an affidavit from plaintiff’s counsel, which did not comply with Rule 191(b)’s requirement of an affidavit supporting the motion from the party. Abramson v. Marderosian, 119 N.E.3d at 9-10. The court also found that the Rule 191 motion was deficient because it did not specify the information Abramson expected to discover from the depositions, just that defendant and his wife could provide “additional information relating to the scope of his representation of plaintiff.” Id.

In Brummel v. Grossman, 121 N.E.3d 970 (Ill. App. 1st June 28, 2018), the appellate court found that Brummell’s 191(b) affidavit failed to meet the statutory requirements by not averring to what she believed each witness would specifically testify. Brummel v. Grossman, 121 N.E.3d at 1000. The court held: “allegations in a ‘general sense’ of what relevant information proposed witnesses would provide for the plaintiff’s claim is not sufficient to show compliance with Rule 191(b). Id. Lastly the court denied Brummell’s claim that strict Rule 191(b) compliance is not necessary when the moving party does not bear the burden of proof on the issue they claim the nonmovant cannot prove in a prima facie case. Id. at 1001. They held that Brummell had plenty of time to depose the 32 witnesses during the initial discovery period in the 14 months the case was pending. Id.

Finally, in Olive Portfolio Alpha LLC v. 116 West Hubbard Street, LLC, 75 N.E.3d 381 (Ill. App. 1st Mar. 23, 2017), the court first discussed the fact that one of the defendant’s Rule 191(b) affidavits was written by their attorney. Olive Portfolio Alpha LLC v. 116 West Hubbard Street, LLC, 75 N.E.3d 389. Rule 191(b) has always been understood to not include affidavits from attorneys, and the defendant only raised the materiality of the attorney’s affidavit on appeal, not at the trial court. Id. The appellate court also found that the other affidavit submitted by the defendant only offered a “general belief” of the testimony sought in discover. Id. The affidavit was based on speculation and “supported by pages printed from the internet” to reach her conclusions. Id. at 390. It also failed to state that these witnesses were the only people capable of providing the evidence she sought, or that they could testify to specific facts needed to support their affirmative defenses. Id.

What are the essential takeaways from these cases? Courts are still strictly applying Rule 191(b). If an attorney waits too long to file a motion with a Rule 191(b) affidavit or fails in any way to comply with the exact requirements of the rule, the courts will deny your motion for additional discovery, resulting in losing the dispositive motion. Worse yet, you may expose yourself to a malpractice claim. In short, know Rule 191(b).