Ch 10 for final - IICLE · PDF file[10.24] Motion for Sanctions b. [10.25] Unreasonable Failure To Comply with Discovery Rules c. [10.26] ... discovery order or rule. S.Ct. Rule 219(c)

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Remedies for Noncompliance JOSEPH G. FEEHAN Heyl, Royster, Voelker & Allen, P.C. Peoria The author wishes to acknowledge the contributions of associate Monica Kim to

this chapter. The contribution of Robert V. Dewey Jr. to prior editions of this chapter is

gratefully acknowledged.

10

ILLINOIS CIVIL DISCOVERY PRACTICE

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I. Introduction A. [10.1] Scope of Chapter B. [10.2] Authority for Supervising Discovery II. Compelling Discovery A. [10.3] Scope of Trial Court’s Authority B. [10.4] Various Types of Discovery 1. [10.5] Depositions a. [10.6] Compelling Attendance b. [10.7] Compelling Answers to Specific Questions c. [10.8] Compelling Witness To Produce Documents 2. [10.9] Interrogatories 3. [10.10] Requests To Produce 4. [10.11] Motions for Physical Examination C. Procedure 1. [10.12] Methods a. [10.13] Moving Party b. [10.14] Opposing Party 2. [10.15] Grounds 3. [10.16] Order 4. [10.17] Appellate Review a. [10.18] Generally Interlocutory and Not Immediately Appealable b. [10.19] Contempt c. [10.20] Supreme Court Rule 224 d. [10.21] Mandamus III. Sanctions A. [10.22] Scope of Trial Court’s Authority B. Sanctions Common to All Discovery 1. [10.23] Sanctions Against Parties a. [10.24] Motion for Sanctions b. [10.25] Unreasonable Failure To Comply with Discovery Rules c. [10.26] Failure To Comply with Order d. [10.27] Need for a Just Order e. [10.28] Imposition of Sanctions (1) [10.29] Stay of further proceedings (2) [10.30] Barring testimony

REMEDIES FOR NONCOMPLIANCE

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 10 — 3

(3) [10.31] Extreme sanctions (4) [10.32] Burden on sanctioned party f. [10.33] Cautionary Note 2. [10.34] Sanctions Against Nonparties 3. [10.35] Sanctions Against Attorneys C. Sanctions Relating to Particular Discovery 1. [10.36] Depositions 2. [10.37] Interrogatories 3. [10.38] Requests To Produce 4. [10.39] Motions for Physical Examination D. Procedures for Obtaining Sanctions 1. [10.40] Prerequisites 2. Motion a. [10.41] Moving Party b. [10.42] Opposing Party 3. [10.43] Order E. [10.44] Sanctions Under Supreme Court Rule 137 IV. [10.45] Conclusion V. Appendix A. [10.46] Motion for Protective Order B. [10.47] Motion To Compel Party To Appear for Deposition C. [10.48] Petition for Rule To Show Cause — Nonparty — Failure To Appear for

Deposition D. [10.49] Rule To Show Cause — Nonparty — Compel Appearance for Deposition E. [10.50] Motion To Compel Deponent To Answer Deposition Questions F. [10.51] Motion To Compel Production of Certain Documents at Time of Oral

Examination

§10.1 ILLINOIS CIVIL DISCOVERY PRACTICE


I. INTRODUCTION A. [10.1] Scope of Chapter Discovery rules have been promulgated to make relevant and necessary information available to all litigants and to expedite the handling of cases. Although Illinois courts have made it increasingly clear that discovery is intended to be a cooperative undertaking, generally conducted without court intervention, the unfortunate reality is that some lawyers and/or their clients may obstruct the discovery process and either delay or stonewall document production to which an opposing party is entitled. When this occurs, it is necessary for a party seeking discovery to request the intervention of the court, which has broad powers both to supervise discovery and to impose sanctions. Most trial judges will not tolerate parties and attorneys who are uncooperative or recalcitrant in providing discovery. Judges are willing to levy harsh sanctions for serious discovery violations, particularly when such violations are repeated. Sanctions are beginning to take on a punitive function, rarely seen as appropriate in the past. Both trial and reviewing courts continue to insist on certain procedural requirements, such as Illinois Supreme Court Rule 201(k) compliance, before severe sanctions are imposed. Furthermore, trial court judges are given great discretion regarding imposition of sanctions, and appellate courts apply a deferential standard when reviewing a trial court’s decision to impose or not impose sanctions. This chapter details the remedies available to a party seeking various types of discovery. Sections 10.3 – 10.21 below describe the scope of the trial court’s authority, the types of discovery, and the procedures to request court assistance in accomplishing discovery. Sections 10.22 – 10.44 below set forth sanctions that can be imposed for failure to comply with discovery orders or for abuse of the discovery rules, as well as the circumstances under which these sanctions are likely to be imposed. Sections 10.46 – 10.51 below provide sample forms. B. [10.2] Authority for Supervising Discovery The Code of Civil Procedure, 735 ILCS 5/1-101, et seq., empowers the Illinois Supreme Court to provide for orderly and expeditious administration and enforcement of the Code and rules made thereunder. 735 ILCS 5/1-105. The Supreme Court has given trial courts broad discretion in making protective orders and in supervising the discovery process:

(1) Protective Orders. The court may at any time on its own initiative, or on motion of any party or witness, make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression. (2) Supervision of Discovery. Upon the motion of any party or witness, on notice to all parties, or on its own initiative without notice, the court may supervise all or any part of any discovery procedure. S.Ct. Rule 201(c).

REMEDIES FOR NONCOMPLIANCE §10.3


II. COMPELLING DISCOVERY A. [10.3] Scope of Trial Court’s Authority Discovery procedures are designed to be flexible and adaptable to an infinite variety of cases and circumstances; indeed, the Supreme Court has stated that “[p]rovisions permitting greater flexibility or conferring wider discretion would be difficult to formulate.” Monier v. Chamberlain, 35 Ill.2d 351, 221 N.E.2d 410, 414 (1966). The trial court is given great discretion to control pretrial discovery. D.C. v. S.A., 178 Ill.2d 551, 687 N.E.2d 1032, 1036 – 1037, 227 Ill.Dec. 550 (1997); Crichton v. Golden Rule Insurance Co., 358 Ill.App.3d 1137, 832 N.E.2d 843, 855, 295 Ill.Dec. 393 (5th Dist. 2005); Youle v. Ryan, 349 Ill.App.3d 377, 811 N.E.2d 1281, 1283 – 1284, 285 Ill.Dec. 402 (4th Dist. 2004); Montalbano Builders, Inc. v. Rauschenberger, 341 Ill.App.3d 1075, 794 N.E.2d 401, 404, 276 Ill.Dec. 506 (3d Dist. 2003); Wynne v. Loyola University of Chicago, 318 Ill.App.3d 443, 741 N.E.2d 669, 678, 251 Ill.Dec. 782 (1st Dist. 2000). The trial court also has great latitude in ruling on discovery matters and in determining whether to reopen discovery; the reviewing court will not overturn discovery rulings on appeal, absent an abuse of discretion. Reda v. Advocate Health Care, 199 Ill.2d 47, 765 N.E.2d 1002, 1007, 262 Ill.Dec. 394 (2002); Regency Commercial Associates, LLC v. Lopax, Inc., 373 Ill.App.3d 270, 869 N.E.2d 310, 324, 311 Ill.Dec. 636 (4th Dist. 2007); Evitts v. DaimlerChrysler Motors Corp., 359 Ill.App.3d 504, 834 N.E.2d 942, 951, 296 Ill.Dec. 137 (1st Dist. 2005) (noting that court abuses its discretion only when its ruling is arbitrary, fanciful, or unreasonable or when no reasonable person would adopt court’s view), citing Mutlu v. State Farm Fire & Casualty Co., 337 Ill.App.3d 420, 785 N.E.2d 951, 962 – 963, 271 Ill.Dec. 757 (1st Dist. 2003); Shields v. Burlington Northern & Santa Fe Ry., 353 Ill.App.3d 506, 818 N.E.2d 851, 852, 288 Ill.Dec. 916 (1st Dist. 2004) (noting that discovery order will not be disturbed absent abuse of discretion, although court does not have discretion to compel disclosure of privileged information or that otherwise exempted by statute or common law), citing TTX Co. v. Whitley, 295 Ill.App.3d 548, 692 N.E.2d 790, 794 – 795, 229 Ill.Dec. 801 (1st Dist. 1998); Youle, supra, 811 N.E.2d at 1283; Maxon v. Ottawa Publishing Co., 402 Ill.App.3d 704, 929 N.E.2d 666, 672, 341 Ill.Dec. 12 (3d Dist. 2010). See Ramos v. Kewanee Hospital, 2013 IL App (3d) 120001, 992 N.E.2d 103, 372 Ill.Dec. 564. In addition to specific sanctions, a trial court may enter “such orders as are just,” including a stay of further proceedings, if a party has unreasonably refused or failed to comply with a discovery order or rule. S.Ct. Rule 219(c). As the legislature did not differentiate between plaintiffs and defendants in formulating discovery rules, it apparently intended that both receive equal treatment. Trial courts are encouraged to exercise their broad supervisory powers to assist in the expeditious and final determination of controversies in accordance with the substantive rights of parties. Disclosure is the object of discovery procedures, and trial judges are to make disclosure a reality. Bachman v. General Motors Corp., 332 Ill.App.3d 760, 776 N.E.2d 262, 294, 267 Ill.Dec. 125 (4th Dist. 2002); Martinez v. Pfizer Laboratories Division, 216 Ill.App.3d 360, 576 N.E.2d 311, 320, 159 Ill.Dec. 642 (1st Dist. 1991). Extensive disclosure through pretrial discovery is the favored method, and the purposes of litigation are best served when each party knows as much about the controversy as is reasonably practicable. In re Estate of Rennick, 181 Ill.2d 395, 692



N.E.2d 1150, 1156, 229 Ill.Dec. 939 (1998); People v. Williford, 271 Ill.App.3d 922, 649 N.E.2d 941, 208 Ill.Dec. 581 (5th Dist. 1995); Mueller Industries, Inc. v. Berkman, 399 Ill.App.3d 456, 927 N.E.2d 794, 803, 340 Ill.Dec. 55 (2d Dist. 2010), quoting Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill.2d 178, 579 N.E.2d 322, 327, 161 Ill.Dec. 774 (1991). However, a circuit court may properly stay or quash a discovery request when it has sufficient information on which to rule on the merits. Furthermore, discovery is not necessary when a cause of action has not been stated. Evitts, supra, 834 N.E.2d at 951 – 952, citing Adkins Energy, LLC v. Delta-T Corp., 347 Ill.App.3d 373, 806 N.E.2d 1273, 1279 – 1280, 282 Ill.Dec. 685 (2d Dist. 2004). The court’s discretion during pretrial discovery should be exercised by keeping in mind the goal of promoting the ascertainment of truth. Welton v. Ambrose, 351 Ill.App.3d 627, 814 N.E.2d 970, 976, 286 Ill.Dec. 744 (4th Dist. 2004); Wausau Insurance Co. v. All Chicagoland Moving & Storage Co., 333 Ill.App.3d 1116, 777 N.E.2d 1062, 1074, 268 Ill.Dec. 139 (2d Dist. 2002) (noting that orders restricting discovery will be reversed as abuse of trial court’s discretion if they prevent ascertainment of truth concerning substantial issue in case). The nature of a trial court’s supervision will necessarily depend on the facts of each case. For example, protective orders are appropriate to prevent dissemination of sensitive discovery materials to third parties or for purposes unrelated to a lawsuit. Here again, the nature of a S.Ct. Rule 201(c) protective order depends on the facts of each case. Hall v. Sprint Spectrum L.P., 368 Ill.App.3d 820, 858 N.E.2d 955, 957, 306 Ill.Dec. 897 (5th Dist. 2006); Avery v. Sabbia, 301 Ill.App.3d 839, 704 N.E.2d 750, 754, 235 Ill.Dec. 177 (1st Dist. 1998); Payne v. Hall, 2013 IL App (1st) 113519, ¶16, 987 N.E.2d 447, 369 Ill.Dec. 820.

PRACTICE POINTERS

When materials subject to discovery constitute trade secrets, are otherwise confidential or sensitive for business reasons, or may be used for purposes unrelated to the lawsuit, the attorney should seek a protective order pursuant to S.Ct. Rule 201(c). For a sample motion for a protective order, see §10.46 below.

While they should generally be used sparingly, motions for protective orders and motions

for supervision of discovery are potentially helpful tools when opposing counsel is engaging in abusive, harassing, or so-called “Rambo” discovery tactics. If faced with this problem, the attorney should refrain from similar tactics but not hesitate to ask the court to put a stop to these practices that unreasonably increase litigation expense for the client.

Court-ordered remedies should not be sought unless counsel can affirmatively show that all reasonable attempts to resolve differences between the parties have been made. S.Ct. Rule 201(k). Absent such a showing, discovery should proceed without judicial intervention. In re Marriage of Lai, 253 Ill.App.3d 111, 625 N.E.2d 330, 334, 192 Ill.Dec. 370 (1st Dist. 1993) (noting that “[t]he more drastic the relief requested, the more necessary [that there be] compliance with Rule 201(k)”). Rule 201(k) insists that parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve discovery disputes. In addition, attorneys are encouraged to



try to resolve discovery differences on their own. Counsel responsible for the trial of a case, rather than subordinate attorneys, are required to personally consult before a motion with respect to discovery is filed. However, S.Ct. Rule 201(k) compliance is not necessary when enforcement is sought of a prior court order that has been defied. Nedzvekas v. Fung, 374 Ill.App.3d 618, 872 N.E.2d 431, 435 – 436, 313 Ill.Dec. 448 (1st Dist. 2007). Requiring compliance with Rule 201(k) before a court could enforce a previous order would permit a delinquent party to use Rule 201(k) to further delay proceedings and, in effect, penalize the party seeking lawful and timely discovery. As a general rule, most courts are reluctant to impose sanctions absent violation of a court order compelling discovery. See, e.g., Sander v. Dow Chemical Co., 166 Ill.2d 48, 651 N.E.2d 1071, 209 Ill.Dec. 623 (1995). A violated court order, however, is not a prerequisite for sanctions. Even absent violation of a court order, a party may be sanctioned for failure to comply with the Supreme Court Rules regarding discovery, requests for admission, and pretrial procedure. S.Ct. Rule 219(c); Patel v. Illinois State Medical Society, 298 Ill.App.3d 356, 698 N.E.2d 588, 595, 232 Ill.Dec. 497 (1st Dist. 1998). Under S.Ct. Rule 201(n), when information or documents are withheld from disclosure or discovery on a claim that they are privileged pursuant to a common-law or statutory privilege, such a claim must be made expressly and supported by a description of the nature of the documents, communications, or things not produced or disclosed, and the exact privilege that is being claimed must be stated, i.e., a privilege log should be created. But see Thomas v. Page, 361 Ill.App.3d 484, 837 N.E.2d 483, 495, 297 Ill.Dec. 400 (2d Dist. 2005) (noting that compliance with Rule 201(n) is not necessary when subpoena or request for production reveals on its face that documents sought fall within scope of absolute privilege). B. [10.4] Various Types of Discovery S.Ct. Rule 201(a) provides that a party may obtain information through any of four basic discovery methods: (1) depositions on oral or written questions, (2) written interrogatories to parties, (3) discovery or inspection of documents or property, or (4) physical and mental examination of persons. 1. [10.5] Depositions Guidelines for depositions are set forth in S.Ct. Rules 202 – 212 and are discussed in detail in Chapters 5 – 7 of this handbook. a. [10.6] Compelling Attendance This section is concerned only with remedies available for willful failure of a deponent to appear. It does not encompass problems occasioned by scheduling mix-ups. The right of any party to a discovery deposition is fundamental to our adversary system. This right imposes a duty on an opposing party that cannot be avoided by technical maneuvers not in



accordance with the spirit of discovery. Vaughn v. Northwestern Memorial Hospital, 210 Ill.App.3d 253, 569 N.E.2d 77, 82, 155 Ill.Dec. 77 (1st Dist. 1991); Ainsworth Corp. v. Cenco Inc., 158 Ill.App.3d 639, 511 N.E.2d 1149, 1153, 110 Ill.Dec. 829 (1st Dist. 1987). S.Ct. Rule 206 establishes notice requirements for setting depositions. When a deponent fails to appear for a scheduled deposition, the methods to compel attendance differ depending on the status of the deponent. For a court to compel attendance, there must be compliance with all of the prerequisites for taking a deposition (set forth in S.Ct. Rules 201 – 212). S.Ct. Rule 206(h) was amended on February 16, 2011, and modifies the requirements for taking a “deposition by telephone, videoconference, or other remote electronic means by stating in the notice the specific electronic means to be used for the deposition, subject to the right to object.” “[T]here is no need to require a party to obtain an order on motion to proceed with such depositions absent a written stipulation. Therefore, the Committee recommended the elimination of such a requirement so that the depositions may proceed by notice.” Committee Comments, S.Ct. Rule 206(h) (Feb. 16, 2011). If the absent deponent is a party, a motion to compel should be filed. S.Ct. Rule 201(b) gives a party the right to obtain, by discovery, full disclosure regarding any matter relevant to the litigation. Evitts v. DaimlerChrysler Motors Corp., 359 Ill.App.3d 504, 834 N.E.2d 942, 951, 296 Ill.Dec. 137 (1st Dist. 2005); Manns v. Briell, 349 Ill.App.3d 358, 811 N.E.2d 349, 352, 285 Ill.Dec. 108 (4th Dist. 2004). If the absent deponent is a nonparty witness subpoenaed pursuant to S.Ct. Rule 204, a petition or motion for a rule to show cause should be filed and served on the deponent. See §§10.48 and 10.49 below for sample forms of a petition for a rule to show cause and a rule to show cause. S.Ct. Rule 219(c) specifically provides for contempt proceedings to compel obedience by any person to a subpoena issued or order entered under the discovery rules. Discovery depositions of nonparty physicians who are deposed in their professional capacity may be taken only by agreement of the parties and with their consent or under a subpoena issued upon order of the court. S.Ct. Rule 204(c). b. [10.7] Compelling Answers to Specific Questions In the course of an oral deposition, an attorney may instruct the client not to answer a particular question. The procedures for compelling answers to particular questions are set forth in S.Ct. Rule 219(a):

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.

It is important to remember that S.Ct. Rule 219(a) gives the attorney asking questions the option of completing the examination on other matters or adjourning. The fact that a refusal to answer may allow the opposition another opportunity to question one’s client poses tactical



problems for an attorney who feels that certain questions are improper. If the problem with a question is one of form (e.g., argumentative) rather than, for example, a matter of privilege, it may well be advantageous to negotiate an acceptable form of the question at the deposition rather than to stand on an objection. If this strategy is employed, it is preferable to have any attempts at reconciliation taken down by the court reporter so that reasonable attempts to resolve differences will be apparent to the trial judge hearing a potential motion. Whether to complete the examination or adjourn the deposition is obviously a matter of judgment in each case.

PRACTICE POINTER

An attorney should carefully consider the ramifications of advising a client not to answer the deposing attorney’s questions. If the client refuses to answer, the deposing attorney may choose to adjourn the deposition pursuant to S.Ct. Rule 219(a), and if the deposing attorney prevails in his or her motion to compel answers, the deposing attorney will likely receive a second bite of the apple — the opportunity to continue questioning the deponent at a subsequent date.

S.Ct. Rule 206(e) gives any party or the deponent the right to move to terminate or limit the scope and manner of a deposition if it “is being conducted in bad faith or in any manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” Although this provision is usually invoked by a party being deposed, it can be used by the proponent of a question when obvious abuse in answering is involved (e.g., evasive answers are being given; an attorney is in effect coaching the witness with speaking objections; or the attorney is requesting deposition recesses, apparently for coaching the witness). Amoco Oil Co. v. Segall, 118 Ill.App.3d 1002, 455 N.E.2d 876, 882 – 883, 74 Ill.Dec. 447 (4th Dist. 1983). Rule 206(e) provides that if the court terminates or limits the scope or manner of taking a deposition, the deposition can be resumed only upon court order. Upon the demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to present a motion for an order. Furthermore, the court may require any party, attorney, or deponent to pay costs or expenses, including reasonable attorneys’ fees, or both, as the court may deem reasonable. S.Ct. Rule 219(a) specifically provides that, upon a refusal to answer, it is the responsibility of the proponent of a question to move the court for an order compelling an answer. Tedrick v. Community Resource Center, Inc., 373 Ill.App.3d 761, 869 N.E.2d 421, 431, 311 Ill.Dec. 747 (5th Dist. 2007). See §10.50 below for a sample motion to compel answers to questions at oral deposition. Rule 219(a) further provides that if the court fails to find substantial justification for the refusal to answer, the court must 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 reasonable expenses incurred in obtaining the order, including reasonable attorneys’ fees. Even if a court finds substantial justification for the refusal to answer, sanctions, including reasonable attorneys’ fees, may be imposed by the court under Rule 219(c). National Wrecking Co. v. Midwest Terminal Corp., 234 Ill.App.3d 750, 601 N.E.2d 999, 1009, 176 Ill.Dec. 301 (1st Dist. 1992). An attorney preparing a motion to compel should have the court reporter transcribe portions of the deposition reflecting unanswered questions and objections made and certify the accuracy of



the transcript. The transcribed portions of the deposition should be attached to the motion. This method eliminates any dispute about the language and form of the question to which an answer was refused. c. [10.8] Compelling Witness To Produce Documents S.Ct. Rule 204(a) requires a party, by notice, and a nonparty witness, by subpoena, to produce documents relating to any matter within the scope of discovery. This rule includes the procedures to be followed in those instances in which the production of documents or tangible things by an individual may excuse the need for taking that person’s deposition. This rule requires disclosure to all parties with prompt and complete production of all materials received regardless of whether the deponent furnishes materials in addition to those specified in the subpoena. Committee Comments, S.Ct. Rule 204 (June 1, 1995). A copy of any subpoena issued with the deposition shall be attached to the notice and immediately filed with the court, not less than 14 days prior to the scheduled deposition. S.Ct. Rule 204(a)(4). Although S.Ct. Rule 219(a) does not specifically address refusal to produce documents requested by a notice of deposition, the party serving notice and taking the deposition can clearly move for an order compelling compliance. A sample motion to compel production is provided in §10.51 below. Since a deponent would not be able to answer questions about requested documents without having them present, the party taking a deposition, in the absence of such documents, has the option of completing the examination on other matters or adjourning the deposition. If a deponent refusing to produce documents is not a party, the party taking the deposition may file a petition for a rule to show cause why the deponent should not be held in contempt. Contempt judgments against nonparty witnesses are considered final and therefore subject to appellate review before the conclusion of a trial on the merits. Norskog v. Pfiel, 197 Ill.2d 60, 755 N.E.2d 1, 8, 257 Ill.Dec. 899 (2001). S.Ct. Rule 304 includes contempt orders on the list of judgments appealable under Rule 304(b) without a special finding. S.Ct. Rule 304(b)(5). Once again, the party taking a deposition has the option of proceeding or adjourning. 2. [10.9] Interrogatories If a party fails to answer any interrogatory properly served, the proponent of the interrogatory may, on notice, move for an order compelling an answer. S.Ct. Rule 219(a). S.Ct. Rule 213(c) limits the number of interrogatories, regardless of when propounded, to 30, including subparts, unless “good cause” requires a greater number. This was intended to prevent attorneys from engaging in the practice of submitting needless, repetitious, and burdensome interrogatories. A motion for leave of court to serve more than 30 interrogatories must be in writing and must set forth the proposed interrogatories and the reasons establishing good cause for their use. Id. Rule 213(d) requires objections or answers to interrogatories to be filed within 28 days after service; if objections are not filed within that period, they may be held untimely and therefore waived. A party propounding interrogatories to which objections have been made has the obligation to set the objections for hearing. S.Ct. Rule 213(d).



In answering interrogatories, half-truths may be held to be equivalent to outright lies and have the effect of affirmative concealment if they imply that there is no further information to be investigated. Delvecchio v. General Motors Corp., 255 Ill.App.3d 189, 625 N.E.2d 1022, 1030 – 1031, 192 Ill.Dec. 867 (5th Dist. 1993); Ostendorf v. International Harvester Co., 89 Ill.2d 273, 433 N.E.2d 253, 257, 60 Ill.Dec. 456 (1982). If answers are inadequate, sanctions may be imposed. Singer v. Treat, 145 Ill.App.3d 585, 495 N.E.2d 1264, 1269, 99 Ill.Dec. 529 (1st Dist. 1986). Sanctions should be imposed only when failure to answer interrogatories adequately is willful, when noncompliance is substantial, and when noncompliance is in bad faith. See In re Marriage of Bradley, 2011 IL App (4th) 110392, ¶¶20 – 25, 961 N.E.2d 980, 356 Ill.Dec. 591; R.M. Lucas Co. v. Peoples Gas Light & Coke Co., 2011 IL App (1st) 102955, ¶28, 963 N.E.2d 274, 357 Ill.Dec. 321. When a responding party misunderstands interrogatories, a violation may be held not to be willful, and the resulting imposition of sanctions can constitute an abuse of discretion. Beiermann v. Edwards, 193 Ill.App.3d 968, 550 N.E.2d 587, 593, 140 Ill.Dec. 702 (2d Dist. 1990); Lubbers v. Norfolk & Western Ry., 147 Ill.App.3d 501, 498 N.E.2d 357, 370, 101 Ill.Dec. 175 (4th Dist. 1986). Falsifying an interrogatory answer on a matter material to the disposition of a lawsuit can be the basis for relief under §2-1401(c) of the Code of Civil Procedure, 735 ILCS 5/2-1401(c), even if discovered more than two years after the entry of judgment. A §2-1401 petition must be filed within two years of entry of the relevant final judgment, but time during which the ground for relief is fraudulently concealed is excluded from the two-year period. In re Marriage of Armstrong, 255 Ill.App.3d 844, 625 N.E.2d 1108, 1110, 192 Ill.Dec. 953 (3d Dist. 1993); Lubbers v. Norfolk & Western Ry., 105 Ill.2d 201, 473 N.E.2d 955, 959, 85 Ill.Dec. 356 (1984). An interrogatory is directed to the actual knowledge and information available to both counsel and the litigant. Mykytiuk v. Stamm, 196 Ill.App.3d 928, 554 N.E.2d 505, 508 – 509, 143 Ill.Dec. 570 (1st Dist. 1990); Smith v. Realcoa Construction Co., 13 Ill.App.3d 254, 300 N.E.2d 855, 859 (1st Dist. 1973). Discussions of the attorney-client and work-product privileges can be found in Mlynarski v. Rush Presbyterian-St. Luke’s Medical Center, 213 Ill.App.3d 427, 572 N.E.2d 1025, 157 Ill.Dec. 561 (1st Dist. 1991), and Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill.2d 103, 432 N.E.2d 250, 59 Ill.Dec. 666 (1982). See Adler v. Greenfield, 2013 IL App (1st) 121066, ¶41, 990 N.E.2d 1219, 371 Ill.Dec. 841. When interrogatories are addressed to a corporate litigant, S.Ct. Rule 213(d) requires that the sworn answers “shall be made by an officer, partner, or agent, who shall furnish such information as is available to the party.” This provision was added to ensure that a corporation “may not avoid answering an interrogatory by disclaiming personal knowledge of the matter on the part of the answering official.” Committee Comments, S.Ct. Rule 213(d) (June 1, 1995). When a corporation answers interrogatories, the officer or agent who executes the answers must take reasonable steps to search the corporate memory by investigating corporate records and trying to ascertain the knowledge of other corporate agents. When a reasonable investigation of other corporate agents would have uncovered the needed answer, a trial court may impose sanctions for failure to supply the material information requested. Chicago Park District v. Chicago & North Western Transportation Co., 240 Ill.App.3d 839, 607 N.E.2d 1300, 1317, 180 Ill.Dec. 787 (1st Dist. 1992); Campen v. Executive House Hotel, Inc., 105 Ill.App.3d 576, 434 N.E.2d 511, 518, 61 Ill.Dec. 358 (1st Dist. 1982).



S.Ct. Rule 213(f) requires a party, upon written interrogatory, to furnish the identities and addresses of witnesses who will testify at trial and to provide the following information:

(1) Lay Witnesses. A “lay witness” is a person giving only fact or lay opinion testimony. For each lay witness, the party must identify the subjects on which the witness will testify. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party’s knowledge of the facts known by and opinions held by the witness. (2) Independent Expert Witnesses. An “independent expert witness” is a person giving expert testimony who is not the party, the party’s current employee, or the party’s retained expert. For each independent expert witness, the party must identify the subjects on which the witness will testify and the opinions the party expects to elicit. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party’s knowledge of the facts known by and opinions held by the witness. (3) Controlled Expert Witnesses. A “controlled expert witness” is a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert. For each controlled expert witness, the party must identify: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.

Committee Comments to S.Ct. Rule 213(f) indicate that the purpose of this paragraph is to prevent unfair surprise at trial without creating an undue burden on the parties before trial. Rule 213(f) provides separate disclosure requirements for each identified category of witnesses. The lay witnesses category includes persons such as an eyewitness to a motor vehicle accident. The rule requires a party to “identify the subjects” of testimony of a lay witness, as opposed to requiring detailed disclosures regarding the subject matter on which the witness will testify, the qualifications of the witness, and the conclusions and opinions of the witness and the bases therefor. S.Ct. Rule 213(f)(1). “Identifying the subjects” means disclosing the topics rather than a summary of the testimony. Committee Comments, S.Ct. Rule 213(f) (Mar. 28, 2002). The comments explain that experience has shown that applying the former, more detailed disclosure requirement to lay witnesses created a serious burden without corresponding benefit to the opposing party. Under the rule, an interrogatory answer must describe the subjects sufficiently to give “reasonable notice of the testimony,” enabling the opposing attorney to decide whether to depose the witness and, if so, on what topics. Id. S.Ct. Rule 213(f)(2) covers independent expert witnesses, which includes persons, such as police officers, who give expert testimony based on their investigation of a motor vehicle accident, or a doctor who gives expert testimony based on the doctor’s treatment of the plaintiff’s injuries. S.Ct. Rule 213(f)(2); Committee Comments, S.Ct. Rule 213(f). Under this category, a “party must identify the subjects [meaning topics] on which the witness will testify and the opinions the party expects to elicit.” S.Ct. Rule 213(f)(2). This changes the former rule, which required a more detailed disclosure of the expected testimony. Committee Comments, S.Ct. Rule 213(f).



Finally, controlled expert witnesses include persons such as a party (e.g., a physician-defendant), employees of a party, and retained experts. S.Ct. Rule 213(f)(3). The comments explain that in this category, the party can count on full cooperation from the witnesses, so the rule requires the party to provide extensive details. In particular, the requirement that the party identify the “subject matter” of the testimony means that the party must set forth the gist of the testimony on each topic the witness will address, as opposed to setting forth the topics alone. Id.; Committee Comments, S.Ct. Rule 213(f). See Johnson v. Johnson, 386 Ill.App.3d 522, 898 N.E.2d 145, 169, 325 Ill.Dec. 412 (1st Dist. 2008). Committee Comments to S.Ct. Rule 213(f) also indicate that a party may meet its disclosure obligation in part by incorporating prior statements or reports of the witness. The answer to the Rule 213(f) interrogatories served on behalf of a party may be sworn to by the party or the party’s attorney. Committee Comments, S.Ct. Rule 213(f). S.Ct. Rule 213(g), entitled “Limitation on Testimony and Freedom to Cross-Examine,” limits the testimony that can be given by a witness on direct examination to information disclosed in a Rule 213 interrogatory or at the deposition of the witness. Additionally, unless good cause is shown, information obtained at an evidence deposition not previously disclosed in a Rule 213(f) interrogatory is inadmissible at trial if the opposing party objects. However, the cross-examining party may elicit information, including opinions, not previously disclosed. The language of the rule is as follows:

The information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery deposition, limits the testimony that can be given by a witness on direct examination at trial. Information disclosed in a discovery deposition need not be later specifically identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the proponent of the witness to prove the information was provided in a Rule 213(f) answer or in the discovery deposition. Except upon a showing of good cause, information in an evidence deposition not previously disclosed in a Rule 213(f) interrogatory answer or in a discovery deposition shall not be admissible upon objection at trial. Without making disclosure under this rule, however, a cross-examining party can elicit information, including opinions, from the witness. This freedom to cross-examine is subject to a restriction that applies in actions that involve multiple parties and multiple representation. In such actions, the cross-examining party may not elicit undisclosed information, including opinions, from the witness on an issue on which its position is aligned with that of the party doing the direct examination. S.Ct. Rule 213(g).

Under S.Ct. Rule 213(i), a party has a duty to supplement answers to interrogatories. The rule states that a party must “seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party.” Rule 213(i) eliminates the need for supplemental interrogatories unless different information is sought. The definition of “seasonable” varies by the facts and nature of each case, but in no situation will it allow a party or an attorney to fail to comply with the spirit of the rule by either negligent or willful noncompliance.



Amendments to S.Ct. Rule 213(i) removed provisions that addressed the duty to supplement with respect to opinion witnesses who had been deposed. Committee Comments to Rule 213(i) (Mar. 28, 2002) indicate that the material deleted from paragraph (i) now appears in modified form in paragraph (g). S.Ct. Rule 213(k), entitled “Liberal Construction,” explains that Rule 213 “is to be liberally construed to do substantial justice between or among the parties.” The Committee Comments state that the “rule is intended to be a shield to prevent unfair surprise but not a sword to prevent the admission of relevant evidence on the basis of technicalities. The purpose of the rule is to allow for a trial to be decided on the merits. The trial court should take this purpose into account when a violation occurs and it is ordering appropriate relief under Rule 219(c).” Committee Comments, S.Ct. 213(k) (Mar. 28, 2002). Under S.Ct. Rule 213, trial courts often strictly enforce the requirements of disclosure of opinions and witnesses. Sullivan v. Edward Hospital, 209 Ill.2d 100, 806 N.E.2d 645, 282 Ill.Dec. 348 (2004); Athans v. Williams, 327 Ill.App.3d 700, 764 N.E.2d 586, 589, 261 Ill.Dec. 971 (2d Dist. 2002); Prairie v. Snow Valley Health Resources, Inc., 324 Ill.App.3d 568, 755 N.E.2d 1021, 1029, 258 Ill.Dec. 202 (2d Dist. 2001). The lesson to the practitioner is certainly clear: When in doubt, disclose. However, a party might rely on Rule 213(k) in seeking to avoid having testimony stricken or a case dismissed for violations of disclosure requirements. S.Ct. Rule 213 disclosures are mandatory and strict compliance is required. Spaetzel v. Dillon, 393 Ill.App.3d 806, 914 N.E.2d 532, 539, 333 Ill.Dec. 113 (1st Dist. 2009). However, courts have held that a trial court’s error in allowing expert testimony will not be enough for reversal without a showing of prejudice. Garden View, LLC v. Fletcher, 394 Ill.App.3d 577, 916 N.E.2d 554, 564 – 565, 334 Ill.Dec. 139 (1st Dist. 2009) (holding that trial court’s error in allowing witness who was not disclosed as adverse witness to testify at trial was not enough to warrant reversal); Spaetzel, supra, 914 N.E.2d at 539 (“[I]t is ‘axiomatic that error in the exclusion or admission of evidence does not require reversal unless one party has been prejudiced or the result of the trial has been materially affected.’ ”), quoting Stricklin v. Chapman, 197 Ill.App.3d 385, 554 N.E.2d 658, 660, 143 Ill.Dec. 723 (5th Dist. 1990). In determining whether there has been prejudice, the court will make a determination based on the totality of the circumstances. Garden View, supra, 916 N.E.2d at 564 – 565. Cetera v. DiFilippo, 404 Ill.App.3d 20, 934 N.E.2d 506, 523, 343 Ill.Dec. 182 (1st Dist. 2010), reiterates that “[u]nlike a Rule 213(f)(3) controlled expert witness, the basis for a Rule 213(f)(2) independent expert witness’s opinion need not be disclosed.” Quoting Nedzvekas v. Fung, 374 Ill.App.3d 618, 872 N.E.2d 431, 437, 313 Ill.Dec. 448 (1st Dist. 2007). 3. [10.10] Requests To Produce S.Ct. Rule 214 allows a party to request the production of tangible evidence for inspection and testing. Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 692 N.E.2d 286, 229 Ill.Dec. 513 (1998); H & H Sand & Gravel Haulers Co. v. Coyne Cylinder Co., 260 Ill.App.3d 235, 632 N.E.2d 697, 701, 198 Ill.Dec. 367 (2d Dist. 1994). Rule 214 provides that a party served with a written request to produce shall either comply with the request or serve written objections. See Scales v. Benne, 2011 IL App (1st) 102253, ¶¶33 – 34, 959 N.E.2d 764, 355 Ill.Dec. 350. Under



the rule, any objections shall be heard by the court upon prompt notice and motion of the party submitting the request. The significance of the word “prompt” in the rule is undefined, but the implication is that the party submitting the request cannot lie in the weeds until the eve of trial and then attempt to call up the objections for hearing at the eleventh hour. Placing the obligation of seeking the disposition of objections on the requesting party potentially reduces the number of hearings, there being no required compliance when the requesting party does not consider the objections important enough to schedule a hearing. If a party fails to comply with a request for production of documents or tangible things, the party serving the request may, on notice, move for an order compelling compliance. S.Ct. Rule 219(a). See Shimanovsky, supra. Further, Rule 219(a) authorizes an award of reasonable expenses, including reasonable attorneys’ fees, incurred in seeking such an order upon a finding by the court that the failure or refusal to comply was without substantial justification. Finally, Rule 219(c) provides for sanctions for refusals to comply with requests for production or for failure to comply with a court order. Under S.Ct. Rule 214, the party served with the request is to produce the requested documents as they are kept in the usual course of business or organized and labeled to correspond with the categories in the request and must produce all retrievable information in computer storage in printed form. Rule 214 also provides that a party has a duty to seasonably supplement any prior response to the extent of documents, objects, or tangible things that subsequently come into that party’s possession or control or become known to that party. S.Ct. Rule 201(b) also requires full disclosure of any information retrievable in computer storage. When enacted in 1996, the amendment was intended to recognize the increasing adoption of electronic technology in everyday business and personal matters by obligating a party to produce on paper those relevant documents that have been stored on electronic media. Another source for electronic discovery (e-discovery) highlights is Ralph C. Losey, INTRODUCTION TO E-DISCOVERY: NEW CASES, IDEAS, AND TECHNIQUES (2009). While S.Ct. Rules 201 and 214 require production of electronic information on paper in response to an opposing party’s request to produce, it is debatable whether this requirement is consistent with the state of modern technology. Illinois practitioners should anticipate that these provisions may be modified as e-discovery rules continue to evolve in response to continuing advances in technology. The federal rules on e-discovery, which include portions of Federal Rules of Civil Procedure 16, 26, 33, 34, 37, and 45, have been favorably viewed by commentators. Since it is possible that the Illinois Supreme Court in the future will adopt e-discovery rules similar to those of the federal rules, staying current with federal e-discovery rules and decisions will likely be beneficial even for practitioners who work solely in the state courts. Although very brief highlights of some of the federal rules relating to e-discovery are provided below, the topic is vast, and attorneys unfamiliar with e-discovery issues should reference material dedicated solely to e-discovery, such as E-DISCOVERY (IICLE®, 2012) and Sharon D. Nelson et al., THE ELECTRONIC EVIDENCE AND DISCOVERY HANDBOOK: FORMS, CHECKLISTS AND GUIDELINES (2006).



The federal rules require an attorney to sign every response to discovery, certifying that the attorney, after reasonable inquiry, has determined that the discovery disclosure is correct and complete. Such certification includes e-discovery requests and responses. Improper certification can result in sanctions or other negative consequences. Fed.R.Civ.P. 26(g). In general, a party may serve on any other party a request for data or data compilations stored in any medium. Fed.R.Civ.P. 34(a). The rules further provide that a producing party must identify but need not provide discovery of electronically stored information that the producing party asserts “is not reasonably accessible.” Fed.R.Civ.P. 26(b)(2)(B). In one of the most influential cases regarding e-discovery, the court addressed guidelines regarding the accessibility of different types of stored information. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003). This opinion and subsequent opinions from the same case demonstrate some of the potential e-discovery pitfalls that should be avoided. Furthermore, the Zubulake court addressed how costs of production should be allocated among the parties, which is an issue almost certain to arise in cases involving a substantial amount of e-discovery or a significant effort to produce e-discovery. Lawyers unfamiliar with the scope and issues of e-discovery should reference this seminal case. A party that does not have possession and control of documents cannot be ordered, as a general rule, to produce them for discovery. Mykytiuk v. Stamm, 196 Ill.App.3d 928, 554 N.E.2d 505, 509, 143 Ill.Dec. 570 (1st Dist. 1990); Wiebusch v. Taylor, 97 Ill.App.3d 210, 422 N.E.2d 875, 878, 52 Ill.Dec. 666 (1st Dist. 1981). However, the mere fact that a party is not in actual possession of a document (e.g., income tax returns) will not be an adequate excuse for nonproduction if that party has the power to obtain the documents or copies from others or has constructive possession of the requested material. Central National Bank in Chicago v. Baime, 112 Ill.App.3d 664, 445 N.E.2d 1179, 1183, 68 Ill.Dec. 326 (1st Dist. 1982) (holding that party may be required to produce documents in possession of third parties when he or she has custody or control of such documents); Hawkins v. Wiggins, 92 Ill.App.3d 278, 415 N.E.2d 1179, 1182, 47 Ill.Dec. 866 (1st Dist. 1980) (holding that because plaintiff had statutory right to inspect and reproduce copies of his tax records, fact that records were not in his actual physical control was no defense to notice to produce federal income tax returns). Requests for production of evidence are to be broadly construed if evidence “would be sufficiently relevant and material to be admissible at trial or if it leads to such relevant and material evidence.” Cordeck Sales, Inc. v. Construction Systems, Inc., 394 Ill.App.3d 870, 917 N.E.2d 536, 544, 334 Ill.Dec. 710 (1st Dist. 2009) (holding that settlement agreement that included confidentiality clause was not shielded from valid discovery request when parties do not argue that agreement is privileged from disclosure as recognized by S.Ct. Rule 201(b)(2)). S.Ct. Rule 201(b) gives a party the right to obtain, by discovery, full disclosure regarding any matter relevant to the litigation. Evitts v. DaimlerChrysler Motors Corp., 359 Ill.App.3d 504, 834 N.E.2d 942, 951, 296 Ill.Dec. 137 (1st Dist. 2005); Manns v. Briell, 349 Ill.App.3d 358, 811 N.E.2d 349, 352, 285 Ill.Dec. 108 (4th Dist. 2004). When there is a dispute over relevance and the dispute comes before the court for adjudication, the moving party should include a statement of the purpose for which the material is required. Davis v. Hinde, 141 Ill.App.3d 664, 490 N.E.2d 1049, 1050 – 1051, 96 Ill.Dec. 13 (2d Dist. 1986). It is important, however, to note that the concept of relevance is broader for discovery purposes than it is for admitting evidence at trial. Relevance for discovery purposes includes not only what is admissible at trial but also that which



leads to admissible evidence. D.C. v. S.A., 178 Ill.2d 551, 687 N.E.2d 1032, 1036 – 1037, 227 Ill.Dec. 550 (1997) (recognizing S.Ct. “Rule 201(b)(1) authorizes broad discovery regarding any matter relevant to the subject matter involved in the pending action”). Discovery should be denied, however, when there is insufficient evidence that the requested discovery is relevant. In re All Asbestos Litigation, 385 Ill.App.3d 386, 895 N.E.2d 1155, 1159 – 1160, 324 Ill.Dec. 440 (1st Dist. 2008) (manufacturer could not be compelled to provide records of every sale in Illinois for 38-year period when plaintiff did not allege exposure to manufacturer’s product at any specific location in Illinois); Hilgenberg v. Kazan, 305 Ill.App.3d 197, 711 N.E.2d 1160, 238 Ill.Dec. 499 (1st Dist. 1999); Manns, supra, 811 N.E.2d at 352 (reversing trial court order requiring defendant in personal-injury action to produce personal financial information that was clearly not relevant and would not lead to relevant information); Youle v. Ryan, 349 Ill.App.3d 377, 811 N.E.2d 1281, 1283, 285 Ill.Dec. 402 (4th Dist. 2004); Fabiano v. City of Palos Hills, 336 Ill.App.3d 635, 784 N.E.2d 258, 279, 271 Ill.Dec. 40 (1st Dist. 2002); Dufour v. Mobil Oil Corp., 301 Ill.App.3d 156, 703 N.E.2d 448, 234 Ill.Dec. 587 (1st Dist. 1998); TTX Co. v. Whitley, 295 Ill.App.3d 548, 692 N.E.2d 790, 796 – 797, 229 Ill.Dec. 801 (1st Dist. 1998); Rokeby-Johnson v. Derek Bryant Insurance Brokers, Ltd., 230 Ill.App.3d 308, 594 N.E.2d 1190, 1196, 171 Ill.Dec. 670 (1st Dist. 1992). A trial court has wide discretion in determining the scope of discovery and should decide whether a request is too broad, whether the material requested is relevant, and whether the requesting party has a good-faith motive. Costa v. Dresser Industries, Inc., 268 Ill.App.3d 1, 642 N.E.2d 898, 902, 205 Ill.Dec. 33 (3d Dist. 1994); Martinez v. Pfizer Laboratories Division, 216 Ill.App.3d 360, 576 N.E.2d 311, 314 – 315, 159 Ill.Dec. 642 (1st Dist. 1991); Audition Division, Ltd. v. Better Business Bureau of Metropolitan Chicago, Inc., 120 Ill.App.3d 254, 458 N.E.2d 115, 121, 75 Ill.Dec. 947 (1st Dist. 1983). S.Ct. Rule 214 does not preclude an independent action against a person who is not a party for production of documents and things or for permission to enter on land. However, if the entity having possession of the documents is not subject to process in this state, obtaining the documents is dependent on legislation or rules of the court in the other state similar to S.Ct. Rule 204(b) (concerning actions in Illinois to depose witnesses in regard to litigation in another state). Price v. Grefco, Inc., 187 Ill.App.3d 514, 543 N.E.2d 521, 523 – 524, 135 Ill.Dec. 138 (4th Dist. 1989) (recognizing that if third-party entity in foreign state possesses documents and is not subject to process in Illinois, obtaining such documents is dependent on legislation or rules of court in foreign state similar to Rule 204(b) concerning actions in Illinois to depose witnesses in regard to litigation in another state). It should also be noted that S.Ct. Rule 201(b) makes an exception for consultants, stating that the identity, opinions, and work product of a consultant are discoverable only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means. 4. [10.11] Motions for Physical Examination It is not unusual in a personal-injury action for a defendant to request a physical examination of the plaintiff. Physical examinations are discussed in detail in Chapter 8 of this handbook.



Many physical examinations are accomplished by agreement. If a party refuses to submit to a physical examination as requested, however, S.Ct. Rule 215(a) provides the remedy. Under Rule 215(a), a trial court may, upon notice and on motion made within a reasonable time before the trial, order a party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition that is involved if the condition of the party to be examined is in controversy. Amendments to Rule 215 added language “to effectuate the objectives of the rule with minimal judicial involvement [and the] requirement of ‘good cause’ was therefore eliminated as grounds for seeking an examination.” Committee Comments, S.Ct. Rule 215 (June 1, 1995). The motion for a physical examination must suggest the identity of the examiner and set forth the examiner’s specialty or discipline. The court may refuse to order examination by the examiner suggested, but in that event, shall permit the party seeking the examination to suggest others. S.Ct. Rule 215(a) requires the party calling an examiner to testify at trial to “disclose the examiner as a controlled expert” in accordance with discovery rules. This is in conformance with the terminology in S.Ct. Rule 213. The term “licensed professionals” encompasses more than physicians. The contemplated circumstances include sociologists, psychologists, or other licensed professionals in juvenile, domestic relations, and child custody cases. The trial court’s decision to order the physical examination of a party will not be reversed absent abuse of the trial court’s considerable discretion. Thompson v. Palos Community Hospital, 254 Ill.App.3d 836, 627 N.E.2d 239, 242, 194 Ill.Dec. 123 (1st Dist. 1993). Sanctions are available if an examining physician’s report is not furnished to the examined party’s attorney in accordance with S.Ct. Rule 215(c). In addition, the failure to provide the attorney for the party who was examined with a copy of the examiner’s report within the 21-day period specified by paragraph (c) may result in exclusion of the examiner’s testimony and opinions and the results of any tests or X-rays that were performed. See Linn v. Damilano, 303 Ill.App.3d 600, 708 N.E.2d 533, 236 Ill.Dec. 947 (4th Dist. 1999). S.Ct. Rule 215 contemplates that a trial court, in its discretion, may order the physical or mental examination of a party under appropriate conditions, irrespective of who raised the issue of that party’s physical or mental condition. In re Estate of Silverman, 257 Ill.App.3d 162, 628 N.E.2d 763, 770, 195 Ill.Dec. 299 (1st Dist. 1993). Physical examinations may be ordered despite some level of risk to the party being examined. In Sarka v. Rush Presbyterian-St. Luke’s Medical Center, 207 Ill.App.3d 587, 566 N.E.2d 301, 308, 152 Ill.Dec. 614 (1st Dist. 1990), the plaintiff opposed the defendant’s request for a CT scan under sedation, arguing that the agent used for sedation posed a known risk of harm. The appellate court affirmed the trial court’s order compelling the plaintiff to submit to the CT scan under sedation and explained that when a plaintiff maintains that a Rule 215 examination presents the possibility of danger, he or she has the burden of showing with competent medical testimony or evidence that the proposed examination is prima facie dangerous. If the plaintiff meets his or her burden, the burden then shifts to the defendant to show the safety of the proposed examination. Sarka, supra. The defendant must then establish by competent medical testimony or evidence that the requested examination has a clear probative value to the litigation’s ultimate issue and that there is a minimal level of risk. Stasiak v. Illinois Valley Community Hospital, 226 Ill.App.3d 1075, 590



N.E.2d 974, 169 Ill.Dec. 55 (3d Dist. 1992). See also Harris v. Mercy Hospital, 231 Ill.App.3d 105, 596 N.E.2d 160, 172 Ill.Dec. 881 (1st Dist. 1992) (holding that child could be compelled to submit to blood test, even though blood test had only 50-percent likelihood of indicating genetic defect at issue and exposed child to potential risk). S.Ct. Rule 215 was amended effective March 28, 2011, and changed paragraph (d)(1), by adding that a trial court may order a medical examination by an impartial medical examiner

only where the parties have presented conflicting medical testimony, reports or other such documentation which places a party’s mental or physical condition “in issue” and, in the court’s discretion, it appears that the examination will materially aid in the just determination of the case. Mere allegations are insufficient to place a party’s mental or physical condition “in issue.” The impartial medical examiner cannot answer the ultimate legal issues in the case; rather, the examiner can render a medical opinion which can assist in the resolution of those issues. Committee Comments, S.Ct. Rule 215 (Mar. 28, 2011).

A trial court has broad discretion in determining what a “reasonable time” is under S.Ct. Rule 215(a). Wisniewski v. Diocese of Belleville, 406 Ill.App.3d 1119, 943 N.E.2d 43, 91, 347 Ill.Dec. 753 (5th Dist. 2011) (affirming trial court’s rejection of motion for examination under Rule 215 when it was filed 50 days before trial and did not contain information as to when examination would take place and when report would be completed). C. Procedure 1. [10.12] Methods Although compliance methods obviously differ depending on the type of discovery sought, there are certain general guidelines that should be followed. Under S.Ct. Rule 201(c), a court may supervise discovery on its own initiative and without notice. M. Loeb Corp. v. Brychek, 98 Ill.App.3d 1122, 424 N.E.2d 1193, 1198, 54 Ill.Dec. 290 (1st Dist. 1981). a. [10.13] Moving Party If compliance with discovery procedures is sought, a motion to compel should be used. For sample forms, see §§10.47, 10.50, and 10.51 below. The type of relief sought will depend on the particular abuse. Authority for a motion to compel may be found in the rules relating to particular types of discovery or in the statutory provisions relating to discovery in general. See §10.2 above. Notice of the hearing of such a motion must be given. A moving party should set forth grounds for its motion in detail. A moving party should allege diligence in attempts to complete discovery and demonstrate how an opponent has acted unreasonably and has thwarted good-faith attempts to prepare the case. S.Ct. Rule 201(k). If noncompliance involves the passage of time, such as through failure to timely answer interrogatories, all pertinent dates should be included. Any prejudice caused by such a delay



should also be explained in detail, particularly if sanctions are sought. See §10.41 below for a checklist for parties moving for sanctions. S.Ct. Rule 201(k) requires that all discovery motions contain a statement that counsel responsible for the trial of the case have tried and failed to resolve their discovery dispute among themselves. In re Estate of Andernovics, 197 Ill.2d 500, 759 N.E.2d 501, 508, 259 Ill.Dec. 721 (2001). Counsel will routinely conduct most discovery without judicial intervention, and thus Rule 201(k) compliance is important to demonstrate that efforts outside the courtroom have failed. Id. Rule 201(k) applies to all motions, but especially to motions calling for drastic measures, such as dismissal. In re Marriage of Lai, 253 Ill.App.3d 111, 625 N.E.2d 330, 334, 192 Ill.Dec. 370 (1st Dist. 1993). Discovery motions are not to be made simply to get the attention of opposing counsel. Indeed, Rule 201(k) compliance will be required before drastic sanctions will be allowed. Id. If compliance is sought from a person who is not a party, the proper procedure is to file a petition for a rule to show cause why the person should not be held in contempt of court. See forms in §§10.48 and 10.49 below. S.Ct. Rule 219(c) specifically provides for contempt proceedings to compel obedience by any person to a subpoena issued or order entered under the discovery rules. b. [10.14] Opposing Party Methods used to oppose a discovery motion obviously differ with the circumstances involved. It is not unusual for an attorney to have difficulty in meeting discovery deadlines, particularly if the client is a corporation and a large volume of documentation is involved. Under such circumstances, the best practice is for the attorney for such a client to attempt to reach an agreement with his or her opponent on an extension of time. If agreement cannot be reached, a motion for an extension of time should be filed before any deadline has run, reciting the reasons for delay. Most courts routinely order an extension of time if there are good reasons for delay. If a motion for an extension is not filed, the reasons for delay should be documented by letter to opposing counsel so that the record will be protected, at least to some degree, in case a motion to compel is filed. Any agreement to extend the time to respond should be confirmed in writing. If an attorney from whom discovery is sought feels that the discovery requested is unreasonable or oppressive, a protective order should be sought pursuant to S.Ct. Rule 201(c). Best v. Taylor Machine Works, 179 Ill.2d 367, 689 N.E.2d 1057, 1094, 228 Ill.Dec. 636 (1997); Yuretich v. Sole, 259 Ill.App.3d 311, 631 N.E.2d 767, 772, 197 Ill.Dec. 545 (4th Dist. 1994); Harris v. Harris, 196 Ill.App.3d 815, 555 N.E.2d 10, 14 – 15, 144 Ill.Dec. 113 (1st Dist. 1990). Rule 201(c)(1) does not set out any specific requirements for protective orders. There is only the broad standard of “as justice requires.” Id. It has been held that this broad standard allows the courts to issue protective orders no matter who requests relief and even on the court’s own motion. Bush v. Catholic Diocese of Peoria, 351 Ill.App.3d 588, 814 N.E.2d 135, 137, 286 Ill.Dec. 485 (3d Dist. 2004). The Committee Comments to S.Ct. Rule 201 (June 1, 1995) do note



that subparagraph (c)(1) provides for “broad discretion to make protective orders.” Skolnick v. Altheimer & Gray, 191 Ill.2d 214, 730 N.E.2d 4, 12, 246 Ill.Dec. 324 (2000); Avery v. Sabbia, 301 Ill.App.3d 839, 704 N.E.2d 750, 235 Ill.Dec. 177 (1st Dist. 1998); Statland v. Freeman, 112 Ill.2d 494, 493 N.E.2d 1075, 1078, 98 Ill.Dec. 54 (1986). Since a party failing to comply has the burden of establishing by affidavit or otherwise that the failure to comply was warranted by extenuating circumstances or events (In re Estate of Andernovics, 197 Ill.2d 500, 759 N.E.2d 501, 259 Ill.Dec. 721 (2001); Cruz v. Columbus-Cuneo-Cabrini Medical Center, 264 Ill.App.3d 633, 636 N.E.2d 908, 916, 201 Ill.Dec. 476 (1st Dist. 1994); Martinez v. Pfizer Laboratories Division, 216 Ill.App.3d 360, 576 N.E.2d 311, 320, 159 Ill.Dec. 642 (1st Dist. 1991); Colls v. City of Chicago, 212 Ill.App.3d 904, 571 N.E.2d 951, 981, 156 Ill.Dec. 971 (1st Dist. 1991)), a verified response to a motion to compel should almost always be filed. This step protects the record for appellate review and is particularly important when an opposing party seeks sanctions. In its response, a noncomplying party should carefully detail reasons or excuses for noncompliance. See, e.g., Clymore v. Hayden, 278 Ill.App.3d 862, 663 N.E.2d 755, 758, 215 Ill.Dec. 512 (4th Dist. 1996). For example, if a delay is occasioned by the attorney’s workload, the attorney should carefully set forth in detail all reasons for the delay (e.g., dates when the attorney was in trial, appellate briefs prepared, etc.). If an attorney’s own inadvertence is responsible for a delay, the attorney will want to document good-faith and expeditious attempts to comply after receipt of the motion. If noncompliance is the fault of a client, the attorney will want to discuss this with the client and consider the advisability of preparing an affidavit from the client to be filed before the hearing. If noncompliance is based on a point of law, the attorney will want to research the issue carefully and include points and authorities in the response to the motion. For additional considerations, see the checklist for a party opposing a motion for sanctions in §10.42 below. 2. [10.15] Grounds The grounds for a motion to compel or a petition for a rule to show cause will differ with the type of discovery sought and the circumstances of each case. It is very important for all parties to protect the record carefully when it is possible that a court will use its broad discretionary powers to supervise discovery. Both the moving party and the opposing party should set forth all grounds and reasons in detail. When an order merely recites the standard language that a court was “fully advised in the premises,” it is presumed that the court received adequate information to support its decision. Smolinski v. Vojta, 363 Ill.App.3d 752, 844 N.E.2d 989, 994, 300 Ill.Dec. 546 (1st Dist. 2006); Mars v. Priester, 205 Ill.App.3d 1060, 563 N.E.2d 977, 981, 150 Ill.Dec. 850 (1st Dist. 1990). That presumption may be lost, however, if there are indications in the record that a trial court did not have adequate evidence before it to justify an order. Estate of Fado, 43 Ill.App.3d 759, 357 N.E.2d 195, 198, 2 Ill.Dec. 218 (1st Dist. 1976). All grounds for an objection, as well as all grounds in support of a motion, must be raised in the trial court and cannot be raised for the first time on appeal. Sanchez v. Phillips, 46 Ill.App.3d 430, 361 N.E.2d 36, 40, 5 Ill.Dec. 36 (1st Dist. 1977). For example, when the absence of a S.Ct.



Rule 201(k) statement is not raised at trial, any relevant objection is waived. Cruz v. Columbus-Cuneo-Cabrini Medical Center, 264 Ill.App.3d 633, 636 N.E.2d 908, 916 n.4, 201 Ill.Dec. 476 (1st Dist. 1994). 3. [10.16] Order After a discovery motion has been heard, an order should be entered detailing the ruling. Findings should be included in any order if the court is inclined to make them. In practice, some judges are hesitant to include findings, although they are more likely to do so if opposing attorneys agree to the form of the order. An order should specifically set forth any remedial action mandated by the court. Discovery orders must be sufficiently clear so that a party will be aware of its obligations thereunder, especially in view of the extreme sanctions that may be obtained for violation of such orders. Central National Bank in Chicago v. Baime, 112 Ill.App.3d 664, 445 N.E.2d 1179, 1183, 68 Ill.Dec. 326 (1st Dist. 1982). In addition, specificity in an order is preferred so that it will provide a reasonable description of items requested, enabling those from whom discovery is sought to know what is being demanded and whether requested material is exempted or privileged. What is sufficiently specific will vary, of course, depending on the circumstances. Nehring v. First National Bank in DeKalb, 143 Ill.App.3d 791, 493 N.E.2d 1119, 1124 – 1125, 98 Ill.Dec. 98 (2d Dist. 1986). A discovery order is interlocutory and nonappealable since it does not dispose of a proceeding. S.Ct. Rule 304; Beale v. EdgeMark Financial Corp., 279 Ill.App.3d 242, 664 N.E.2d 302, 303, 215 Ill.Dec. 905 (1st Dist. 1996). Refusal to comply with a discovery order to force a contempt citation is an appropriate method to obtain an immediate interlocutory review of the order. Reda v. Advocate Health Care, 199 Ill.2d 47, 765 N.E.2d 1002, 262 Ill.Dec. 394 (2002); In re All Asbestos Litigation, 385 Ill.App.3d 386, 895 N.E.2d 1155, 1157, 324 Ill.Dec. 440 (1st Dist. 2008) (party’s request of “friendly contempt” was entered so discovery order could be appealed); Lama v. Preskill, 353 Ill.App.3d 300, 818 N.E.2d 443, 447, 288 Ill.Dec. 755 (2d Dist. 2004) (noting that contempt proceedings may be used to test correctness of discovery order), citing Norskog v. Pfiel, 197 Ill.2d 60, 755 N.E.2d 1, 8, 257 Ill.Dec. 899 (2001); Berry v. West Suburban Hospital Medical Center, 338 Ill.App.3d 49, 788 N.E.2d 75, 81, 272 Ill.Dec. 771 (1st Dist. 2003) (noting that requesting trial court to enter contempt order is proper procedure to seek immediate appeal of trial court’s discovery order), citing Green v. Lake Forest Hospital, 335 Ill.App.3d 134, 781 N.E.2d 658, 663 – 664, 269 Ill.Dec. 861 (2d Dist. 2002). Because discovery orders are interlocutory, they may be reviewed, modified, or vacated at any time before final judgment. Generally, though, a successor judge should revise or modify previous discovery rulings only if there is a change of circumstances or if there are additional facts that warrant such action. Thomas v. Johnson Controls, Inc., 344 Ill.App.3d 1026, 801 N.E.2d 90, 94, 279 Ill.Dec. 798 (1st Dist. 2003); Geers v. Brichta, 248 Ill.App.3d 398, 618 N.E.2d 531, 539, 187 Ill.Dec. 940 (1st Dist. 1993); Balciunas v. Duff, 94 Ill.2d 176, 446 N.E.2d 242, 247, 68 Ill.Dec. 508 (1983). However, a successor judge may overturn a prior judge’s interlocutory order when it is erroneous as a matter of law. Casualty Insurance Co. v. Hill Mechanical Group, 323 Ill.App.3d 1028, 753 N.E.2d 370, 376, 257 Ill.Dec. 175 (1st Dist. 2001).



4. [10.17] Appellate Review The time for appellate review of a trial court’s discovery orders differs depending on how jurisdiction is created in the appellate court. The different ways appellate courts may have jurisdiction are discussed separately in §§10.18 – 10.21 below. a. [10.18] Generally Interlocutory and Not Immediately Appealable Appellate courts very rarely review the supervision of discovery until after trial on the merits because a discovery order is interlocutory and nonappealable. S.Ct. Rule 304. When appeal is taken following trial on the merits, counsel must include any challenged discovery sanction in the notice of appeal or subsequent amendment thereto. Conley v. Peoples Gas, Light & Coke Co., 82 Ill.App.3d 1094, 403 N.E.2d 625, 630 – 631, 38 Ill.Dec. 394 (1st Dist. 1980). b. [10.19] Contempt Under certain circumstances, a party may desire immediate appeal of a discovery order. If, for example, a trial court orders production of materials felt to be privileged, the confidentiality of those materials will be lost if they are produced, and an appeal at the conclusion of the trial would be of little assistance. In that case, an attorney most likely should seek to have a citation of friendly contempt entered by the court so that immediate appeal can be taken. The attorney representing a party that wishes to appeal a discovery order may advise the trial court that its ruling will not be followed. The attorney will then be held in civil contempt, and a fine, usually nominal, will be imposed. Any contempt proceeding will then be final and appealable because it constitutes an original proceeding collateral to and independent of the case in which it arises. Incurring contempt has been held an appropriate method of testing pretrial discovery orders. Youle v. Ryan, 349 Ill.App.3d 377, 811 N.E.2d 1281, 1283, 285 Ill.Dec. 402 (4th Dist. 2004); Reda v. Advocate Health Care, 199 Ill.2d 47, 765 N.E.2d 1002, 1007, 262 Ill.Dec. 394 (2002). When a party appeals contempt sanctions imposed for violating a pretrial discovery order, appellate review of the contempt finding necessarily requires review of the discovery order on which it was based. In re All Asbestos Litigation, 385 Ill.App.3d 386, 895 N.E.2d 1155, 1159 – 1160, 324 Ill.Dec. 440 (1st Dist. 2008) (vacating contempt citation upon finding discovery order overbroad); Lama v. Preskill, 353 Ill.App.3d 300, 818 N.E.2d 443, 447, 288 Ill.Dec. 755 (2d Dist. 2004), citing Norskog v. Pfiel, 197 Ill.2d 60, 755 N.E.2d 1, 8, 257 Ill.Dec. 899 (2001); Youle, supra. An order directing compliance with discovery is not a final, appealable order when there has been no contempt proceeding for failure to comply with that order. In re All Asbestos Litigation, supra, 895 N.E.2d at 1157; Western States Insurance Co. v. O’Hara, 357 Ill.App.3d 509, 828 N.E.2d 842, 846, 293 Ill.Dec. 532 (4th Dist. 2005) (noting that propriety of discovery order may be considered through appeal of contempt order); Brown v. Department of Mental Health & Developmental Disabilities, 137 Ill.App.3d 135, 484 N.E.2d 369, 370, 91 Ill.Dec. 810 (1st Dist. 1985). An order providing for automatic dismissal of a complaint if discovery is not fully



undertaken is not a final order and thus is not appealable. Pottorf v. Clark, 134 Ill.App.3d 349, 480 N.E.2d 533, 535, 89 Ill.Dec. 348 (3d Dist. 1985). The First District has held “that an order merely assessing fines and costs . . . unless imposed pursuant to a contempt of court determination, is not final and appealable.” In re Marriage of Young, 244 Ill.App.3d 313, 614 N.E.2d 423, 426, 185 Ill.Dec. 289 (1st Dist. 1993). In addition, an order merely holding an individual in contempt is insufficient to confer appellate court jurisdiction. Vowell v. Pedersen, 315 Ill.App.3d 665, 734 N.E.2d 169, 171, 248 Ill.Dec. 461 (2d Dist. 2000). For an appellate court to assume jurisdiction, the contempt order must impose sanctions of some kind on the contemnor. It is the imposition of the sanction that is final and appealable. Id. (finding that order which only held attorney in contempt, with no sanction imposed, was insufficient to confer jurisdiction). See also S.Ct. Rule 304(b)(5). This is why courts often enter an order of friendly contempt, with a nominal fine, such as one dollar, imposed. In re All Asbestos Litigation, supra. When contempt proceedings are used to test pretrial discovery orders, the contempt order and fine should be vacated as long as the appeal is brought in good faith. Norskog v. Pfiel, 314 Ill.App.3d 877, 733 N.E.2d 386, 390, 247 Ill.Dec. 922 (1st Dist. 2000) (noting that if discovery order is invalid, contempt order for failure to comply with discovery order must be reversed), citing In re Marriage of Bonneau, 294 Ill.App.3d 720, 691 N.E.2d 123, 229 Ill.Dec. 187 (2d Dist. 1998); In re All Asbestos Litigation, supra, 895 N.E.2d at 1160 (vacating contempt citation upon finding discovery order overbroad); Pietro v. Marriott Senior Living Services, Inc., 348 Ill.App.3d 541, 810 N.E.2d 217, 228, 284 Ill.Dec. 564 (1st Dist. 2004). c. [10.20] Supreme Court Rule 224 S.Ct. Rule 224 is a tool that can be used prior to filing a lawsuit to determine the identity of parties that may be liable to the person for damages. The comments to the rule indicate that it is a “tool by which a person or entity may, with leave of court, compel limited discovery before filing a lawsuit in an effort to determine the identity of one who may be liable in damages.” Committee Comments, S.Ct. Rule 224 (Aug. 1, 1989). The filing of a Rule 224 petition creates an independent action for “discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages.” S.Ct. Rule 224(a)(1)(i). The relief sought in that action is the entry of an “order authorizing the petitioner to obtain . . . discovery [of] the identification of responsible persons and entities.” S.Ct. Rule 224(a)(1)(ii). A discovery order entered pursuant to a S.Ct. Rule 224 petition is a final order and thus is appealable because the discovery order entered provides final adjudication of the rights of the parties and terminates the litigation. Beale v. EdgeMark Financial Corp., 279 Ill.App.3d 242, 664 N.E.2d 302, 303, 215 Ill.Dec. 905 (1st Dist. 1996). In Beale, the court held that the order authorizing the petitioner to obtain pre-suit discovery of the identity of the persons who could be responsible in damages to him was final and thus appealable, even though no contempt order was entered and no sanctions were imposed. Id.



d. [10.21] Mandamus Another possible vehicle for appeal is a petition to the Illinois Supreme Court for an original order of mandamus. Mandamus is an extraordinary remedy, and a petition seeking it will not be granted unless there are issues of great importance involved. Marshall v. Elward, 78 Ill.2d 366, 399 N.E.2d 1329, 1333, 35 Ill.Dec. 801 (1980); People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 226 N.E.2d 6, 13 (1967). Mandamus is not ordinarily to be used to regulate discovery in the trial court or to correct abuses of discretion. People ex rel. Birkett v. Bakalis, 196 Ill.2d 510, 752 N.E.2d 1107, 1110, 256 Ill.Dec. 865 (2001). Mandamus will be granted in the discovery context only when the issues presented are of vital importance to the administration of justice. Statland v. Freeman, 112 Ill.2d 494, 493 N.E.2d 1075, 1077, 98 Ill.Dec. 54 (1986); Owen v. Mann, 105 Ill.2d 525, 475 N.E.2d 886, 890, 86 Ill.Dec. 507 (1985); Balciunas v. Duff, 94 Ill.2d 176, 446 N.E.2d 242, 247 – 248, 68 Ill.Dec. 508 (1983). III. SANCTIONS A. [10.22] Scope of Trial Court’s Authority The discovery rules provide various sanctions to assist trial courts in managing lawsuits. Realizing that discovery is an integral part of modern civil litigation, courts have used sanctions to enforce discovery rules and keep litigation progressing toward a prompt and just determination as well as to ensure that evidence is made available to both sides while it still exists. Savitch v. Allman, 25 Ill.App.3d 864, 323 N.E.2d 435, 438 (3d Dist. 1975). See Dolan v. O’Callaghan, 2012 IL App (1st) 111505, ¶63, 979 N.E.2d 383, 365 Ill.Dec. 779. In addition to providing for specific sanctions relating to particular discovery, the Supreme Court has vested the trial judge with a number of general sanctions from which to choose in regulating pretrial procedures, including, but not limited to, (1) staying further proceedings until a rule or order is complied with; (2) barring the offending party from filing any other pleading regarding any issue to which the refusal or failure relates; (3) barring the offending party from filing or maintaining any particular claim, counterclaim, third-party complaint, or defense relating to the issue; (4) barring a witness from testifying concerning the issue; (5) entering default judgment or dismissing the offending party’s action as to claims or defenses asserted in any pleading to which the issue is material; (6) striking any portion of the offending party’s pleadings relating to the issue, and, if then appropriate, entering judgment on that issue; and (7) ordering the offending party to pay interest for any period of pretrial delay attributable to the offending party’s conduct. S.Ct. Rule 219(c). A trial judge is given broad discretion with respect to the imposition of sanctions. The imposition of a particular sanction will not be disturbed on review unless that discretion has been clearly abused. Dalan/Jupiter, Inc., ex rel. JRC Midway Marketplace, L.P. v. Draper & Kramer, Inc., 372 Ill.App.3d 362, 865 N.E.2d 442, 450, 310 Ill.Dec. 118 (1st Dist. 2007); Heinrich v. Mitchell, 357 Ill.App.3d 1017, 830 N.E.2d 658, 662, 294 Ill.Dec. 246 (1st Dist. 2005); Fosse v. Pensabene, 362 Ill.App.3d 172, 838 N.E.2d 258, 273, 297 Ill.Dec. 771 (2d Dist. 2005); Adams v. Bath & Body Works, Inc., 358 Ill.App.3d 387, 830 N.E.2d 645, 654, 294 Ill.Dec. 233 (1st Dist.



2005); Dolan, supra, 2012 IL App (1st) 111505 at ¶65; Cronin v. Kottke Associates, LLC, 2012 IL App (1st) 111632, ¶39, 975 N.E.2d 680, 363 Ill.Dec. 654. Extreme disregard for a court’s authority will not be rewarded and warrants severe sanctions — even entry of judgment. King v. Clay, 335 Ill.App.3d 923, 781 N.E.2d 464, 468, 269 Ill.Dec. 667 (1st Dist. 2002); In re Marriage of Booher, 313 Ill.App.3d 356, 728 N.E.2d 1230, 1232, 245 Ill.Dec. 873 (4th Dist. 2000); Illinois Environmental Protection Agency v. Celotex Corp., 168 Ill.App.3d 592, 522 N.E.2d 888, 891 – 892, 119 Ill.Dec. 226 (3d Dist. 1988). The refusal to employ any sanction is not an automatic abuse of discretion, although the trial court may abuse its discretion in failing to employ sanctions in certain cases. Boatmen’s National Bank of Belleville v. Martin, 155 Ill.2d 305, 614 N.E.2d 1194, 1198 – 1199, 185 Ill.Dec. 509 (1993). In assessing sanctions, a trial court should look at the intent and spirit of the rules. It should be flexible in its approach so as to ensure both discovery and trial on the merits, if possible. The facts of each case must be considered in determining whether a sanction should be imposed and, if so, what type of sanction should issue. Workman v. St. Therese Medical Center, 266 Ill.App.3d 286, 640 N.E.2d 349, 203 Ill.Dec. 690 (2d Dist. 1994); Curry v. Summer, 136 Ill.App.3d 468, 483 N.E.2d 711, 720, 91 Ill.Dec. 365 (4th Dist. 1985). The power to impose sanctions requires a careful exercise of the judge’s discretion to balance the needs of the truth-seeking process against needless harassment of litigants. Northern Illinois Gas Co. v. Murphy Excavating, 212 Ill.App.3d 486, 571 N.E.2d 228, 156 Ill.Dec. 641 (2d Dist. 1991); Cedric Spring & Associates, Inc. v. N.E.I. Corp., 81 Ill.App.3d 1031, 402 N.E.2d 352, 356, 37 Ill.Dec. 462 (2d Dist. 1980). See, e.g., Cirrincione v. Westminster Gardens Limited Partnership, 352 Ill.App.3d 755, 816 N.E.2d 730, 738, 287 Ill.Dec. 763 (1st Dist. 2004), in which the reviewing court found entry of a default judgment too great a sanction for discovery violations and instead found that reasonable expenses and attorneys’ fees should be reassessed if necessary. This result reflects the general proposition that, to secure compliance with discovery, sanctions should, if possible, be progressive. Adams, supra (noting that, in crafting just order, court must remember that purpose of sanction is to effectuate goals of discovery); Buffington v. Yungen, 322 Ill.App.3d 152, 748 N.E.2d 844, 255 Ill.Dec. 140 (2d Dist. 2001); Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 692 N.E.2d 286, 291, 229 Ill.Dec. 513 (1998). To determine if the trial court abused its discretion, a reviewing court must consider the criteria on which the trial court relied in making its determination of an appropriate sanction. The factors a trial court is to use in determining what sanction, if any, to apply are (1) the surprise to the adverse party, (2) the prejudicial effect of the proffered testimony or evidence, (3) the nature of the testimony or evidence, (4) the diligence of the adverse party in seeking discovery, (5) the timeliness of the adverse party’s objection to the testimony or evidence, and (6) the good faith of the party offering the testimony or evidence. Shimanovsky, supra; Adams, supra; Perry v. Minor, 319 Ill.App.3d 703, 745 N.E.2d 113, 253 Ill.Dec. 339 (1st Dist. 2001); Cronin, supra, 2012 IL App (1st) 111632 at ¶¶41 – 69. The reviewing court looks to the factors the trial court applied when deciding whether it abused its discretion. Peal v. Lee, 403 Ill.App.3d 197, 933 N.E.2d 450, 458, 342 Ill.Dec. 864 (1st Dist. 2010). See Dolan, supra, 2012 IL App (1st) 111505 at ¶64. Once a sanction has been imposed for noncompliance with a discovery rule, the sanctioned party has the burden of establishing that the noncompliance was reasonable or justified by



extenuating circumstances. In re Estate of Andernovics, 197 Ill.2d 500, 759 N.E.2d 501, 508, 259 Ill.Dec. 721 (2001); H & H Sand & Gravel Haulers Co. v. Coyne Cylinder Co., 260 Ill.App.3d 235, 632 N.E.2d 697, 701, 198 Ill.Dec. 367 (2d Dist. 1994); Dupree ex rel. Estate of Hunter v. County of Cook, 287 Ill.App.3d 135, 677 N.E.2d 1303, 1311, 222 Ill.Dec. 504 (1st Dist. 1997). A number of cases hold that, while sanctions may be imposed to coerce cooperation in the disposition of a lawsuit, they may not be imposed simply to punish. Cirrincione, supra; Neal v. Nimmagadda, 279 Ill.App.3d 834, 665 N.E.2d 424, 430, 216 Ill.Dec. 364 (1st Dist. 1996); Adams, supra; Evers v. Edward Hospital Ass’n, 247 Ill.App.3d 717, 617 N.E.2d 1211, 1226, 187 Ill.Dec. 490 (2d Dist. 1993); In re L.M., 205 Ill.App.3d 497, 563 N.E.2d 999, 1004, 150 Ill.Dec. 872 (4th Dist. 1990). In Hartnett v. Stack, 241 Ill.App.3d 157, 607 N.E.2d 703, 716, 180 Ill.Dec. 634 (2d Dist. 1993), the Second District held that the amount of damages awarded to the plaintiff after default judgment had been entered against the defendant constituted punishment for the defendant’s discovery violations and was thus contrary to the purposes of S.Ct. Rule 219(c). Regarding the propriety of discovery sanctions as punishment, however, it should be noted that S.Ct. Rule 219(c) contains the following provision:

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.

The Committee Comments to S.Ct. Rule 219 explain that a trial court retains jurisdiction to enforce monetary sanctions imposed for abuse of discovery if an order prescribing such sanctions was entered before judgment or dismissal, whether voluntary or involuntary, or to order and enforce monetary sanctions if a motion for sanctions was pending before the court prior to the filing of a notice or motion seeking a judgment or order of dismissal, whether voluntary or involuntary. This rule was intended to make “clear that a party may not avoid the consequences of an abuse of the discovery process by filing a notice of voluntary dismissal.” Committee Comments, S.Ct. Rule 219(c) (June 1, 1995). However, it has been recognized that Rule 219(c) only extends the court’s jurisdiction beyond the termination of the case in circumstances expressly stated in the rule. Badea v. Phillips, 389 Ill.App.3d 292, 906 N.E.2d 615, 619, 329 Ill.Dec. 417 (1st Dist. 2009) (holding that “by the express language of Rule 219(c) the motion for sanctions must have been ‘pending . . . prior to the filing of a notice or motion seeking a judgment or order of dismissal,’ ” and because motion for sanctions was not filed until after dismissal order had been entered, court did not have jurisdiction pursuant to Rule 219(c); additionally, “Rule 219(c) limits the residual jurisdiction of the circuit court to the enforcement of ‘any order imposing monetary sanctions’ ”). See also Maggi v. RAS Development, Inc., 2011 IL App (1st) 091955, ¶78, 949 N.E.2d 731, 350 Ill.Dec. 939 (“by the express language of Rule 219(c), and consistent with this court’s holding in Badea, the trial court would only retain residual jurisdiction if plaintiff had filed a motion for sanctions prior to the entry of judgment”). In circumstances in which the court does have residual jurisdiction pursuant to Rule 219(c), however, the intent of the rule could be interpreted as punitive since an order of dismissal would ordinarily terminate litigation in all respects. The intent is, perhaps, to deter parties from similar violations in subsequent litigation.



S.Ct. Rule 219(e) prohibits courts from allowing parties to voluntarily dismiss claims to avoid compliance with discovery rules or deadlines and to avoid the consequences of the failures of discovery or orders barring witnesses or evidence. See, e.g., Morrison v. Wagner, 191 Ill.2d 162, 729 N.E.2d 486, 246 Ill.Dec. 113 (2000). However, before a court imposes expenses pursuant to Rule 219(e), a trial court must make a preliminary finding as to whether the plaintiff engaged in discovery misconduct. In other words, if a party is not engaging in discovery misconduct, it may voluntarily dismiss its action without sanction. In re Marriage of Webb, 333 Ill.App.3d 1104, 777 N.E.2d 443, 267 Ill.Dec. 640 (2d Dist. 2002). The Committee Comments to this rule specify that when a case is refiled, the court shall consider the prior litigation in determining what discovery will be permitted and what witnesses and evidence may be barred. In other words, the consequences of noncompliance with discovery deadlines, rules, or orders cannot be eliminated by taking a voluntary dismissal. As with other provisions of S.Ct. Rule 219, a trial court’s issuance of sanctions will be reversed only if there is clear abuse of discretion. Smith v. P.A.C.E., Suburban Bus Division of Regional Transportation Authority, 323 Ill.App.3d 1067, 753 N.E.2d 353, 360, 257 Ill.Dec. 158 (1st Dist. 2001). Furthermore, S.Ct. Rule 219(e) “gives the trial court the discretion not only to assess ‘costs,’ but to ‘require the party voluntarily dismissing a claim to pay an opposing party or parties reasonable expenses.’ ” Vicencio v. Lincoln-Way Builders, Inc., 204 Ill.2d 295, 789 N.E.2d 290, 297 n.1, 273 Ill.Dec. 390 (2003). However, Rule 219(e) does not provide for the payment of attorneys’ fees when an action is voluntarily dismissed. Finally, Rule 219(e)’s inclusion of “expert witness fees” in the list of reasonable expenses a party voluntarily dismissing a claim may have to pay to an opposing party is in conformance with the terminology in S.Ct. Rule 213. For some time, the trend was toward the imposition of more punitive discovery sanctions. While adhering to the traditional rejection of punishment per se as a motive for discovery sanctions (see above), courts began to embrace general deterrence as a proper consideration in discovery rulings. Colls v. City of Chicago, 212 Ill.App.3d 904, 571 N.E.2d 951, 981, 156 Ill.Dec. 971 (1st Dist. 1991); Vaughn v. Northwestern Memorial Hospital, 210 Ill.App.3d 253, 569 N.E.2d 77, 83, 155 Ill.Dec. 77 (1st Dist. 1991). Notwithstanding this trend, courts have reiterated that the purpose of imposing sanctions for discovery violations is not punishment. Rather, in determining the appropriate sanction, the trial court must conduct a balancing test between the parties’ rights to maintain a lawsuit against the need to accomplish the objectives of discovery and to promote the unimpeded flow of litigation. State Farm Mutual Insurance Co. v. Nasser, 337 Ill.App.3d 362, 785 N.E.2d 934, 938, 271 Ill.Dec. 740 (1st Dist. 2003); Bachman v. General Motors Corp., 332 Ill.App.3d 760, 776 N.E.2d 262, 290, 267 Ill.Dec. 125 (4th Dist. 2002); Smith, supra, 753 N.E.2d at 361. Another factor stressed by the courts is the integrity of the court system:

The trial judge must consider the importance of maintaining the integrity of our court system. It is this integrity that equips the trial judge with the authority to protect competing interests. . . . Where it becomes apparent that a party has willfully disregarded the authority of the court, and such disregard is likely to



continue, the interests of that party in the lawsuit must bow to the interests of the opposing party. [Citation omitted.] Sander v. Dow Chemical Co., 166 Ill.2d 48, 651 N.E.2d 1071, 1081, 209 Ill.Dec. 623 (1995).

In Clymore v. Hayden, 278 Ill.App.3d 862, 663 N.E.2d 755, 759, 215 Ill.Dec. 512 (4th Dist. 1996), the appellate court emphasized that the changes that the Supreme Court of Illinois made to discovery rules effective January 1, 1996, “both tighten the discovery process and give trial courts greater authority to govern it.” The Clymore decision also stressed that it is very important for trial judges to make a detailed record to assist the reviewing court to understand why the trial court exercised its discretion as it did. The trial judge should pointedly interrogate the noncomplying counsel on the record to determine the precise reasons for noncompliance, not only for making a complete record but also because “if attorneys realize they will be called upon to explain their conduct, that realization by itself may encourage them to comply with court rules and orders.” 663 N.E.2d at 758. It should also be noted that, under S.Ct. Rule 219(c), the trial judge is to set forth with specificity the reasons and basis for any sanction imposed either in the judgment order itself or in a separate written order. An award of attorneys’ fees for a discovery violation rests within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Peal, supra, 933 N.E.2d at 457. “A trial court abuses its discretion when it acts arbitrarily, without conscientious judgment, or, in view of all of the circumstances, exceeds the bounds of reason and ignores recognized principles of law, resulting in substantial injustice.” In re Marriage of Daebel, 404 Ill.App.3d 473, 935 N.E.2d 1131, 1142, 343 Ill.Dec. 903 (2d Dist. 2010), quoting In re Marriage of Haken, 394 Ill.App.3d 155, 914 N.E.2d 739, 743, 333 Ill.Dec. 320 (4th Dist. 2009). Daebel, supra, was a dissolution action in which the appellate court found that the trial court’s sanction of ordering a wife to pay attorneys’ fees for her failure to sit for a deposition was too lenient and that the husband was also entitled to have the wife’s testimony barred. In holding that stricter sanctions were appropriate, the appellate court analyzed, in detail, the six factors the trial court used in determining the sanctions and found that they all weighed in favor of the moving party (analyzing the following six factors: surprise to the adverse party; prejudicial effect of the proffered testimony or evidence; nature of the testimony or evidence; the diligence of the adverse party in seeking discovery; the timeliness of the adverse party’s objection to the testimony or evidence; and the good faith of the party offering the testimony or evidence). A court will grant reasonable attorneys’ fees to a party if a witness refuses to provide requested documents (affirming the trial court’s imposition of attorneys’ fees related to the deposition of an expert witness who refused to provide requested tax returns). New v. Pace Suburban Bus Service, 398 Ill.App.3d 371, 923 N.E.2d 310, 321 – 322, 337 Ill.Dec. 751 (1st Dist. 2010). See Reyes v. Menard, Inc., 2012 IL App (1st) 112555, ¶¶34 – 39, 981 N.E.2d 453, 367 Ill.Dec. 128. But see Peal, supra, 933 N.E.2d at 463 (affirming denial of attorneys’ fees because plaintiff had already received “severe sanction” of having his complaint dismissed with prejudice). A party hiring an expert witness should ensure that the witness is informed of the types of documents, such as tax returns, that may be discoverable.



B. Sanctions Common to All Discovery 1. [10.23] Sanctions Against Parties S.Ct. Rule 219(c) governs pretrial procedures with respect to parties and gives a trial court broad discretion regarding the imposition of sanctions. S.Ct. Rule 219(c) gives very little guidance to a trial judge asked to impose discovery sanctions; the judge is instructed to make “such orders as are just” and is provided with a number of different sanctions from which to choose. This list of sanctions in Rule 219(c) is not exhaustive. In re D.R., 307 Ill.App.3d 478, 718 N.E.2d 664, 666, 241 Ill.Dec. 93 (1st Dist. 1999). The wording of S.Ct. Rule 219(c) does provide certain affirmative limitations on a trial court’s power. An analysis of each follows. a. [10.24] Motion for Sanctions A motion for sanctions should be made. Because portions of S.Ct. Rule 219 explicitly allow the court to act on its own motion (e.g., a court can order expenses and attorneys’ fees as a result of misconduct and order monetary sanctions when a party dismisses its case to avoid discovery orders) while other portions do not, it appears that the rule of inclusio unius est exclusio alterius (the inclusion of one is the exclusion of others) arguably applies, in which case a motion for sanctions must be made by a party. Three decisions have recognized the issue of whether a court may impose sanctions on its own motion, but in each case the court has refused to address the issue because it was unnecessary to the disposition of the matter. See King v. Clay, 335 Ill.App.3d 923, 781 N.E.2d 464, 269 Ill.Dec. 667 (1st Dist. 2002); Buffington v. Yungen, 322 Ill.App.3d 152, 748 N.E.2d 844, 255 Ill.Dec. 140 (2d Dist. 2001); Vortanz v. Elmhurst Memorial Hospital, 179 Ill.App.3d 584, 534 N.E.2d 625, 128 Ill.Dec. 443 (2d Dist. 1989). Despite the unresolved issue, a vigilant attorney should file a motion for sanctions when appropriate, instead of relying on the court to do so on its own motion. b. [10.25] Unreasonable Failure To Comply with Discovery Rules There must be an unreasonable failure to comply with the provisions of S.Ct. Rules 201 – 218. A trial court must determine whether the conduct of a noncomplying party has been unreasonable. In determining whether noncompliance with discovery was unreasonable, the standard is whether the offending party’s conduct is characterized by a deliberate and pronounced disregard for the discovery rules and the court (Stringer v. Packaging Corporation of America, 351 Ill.App.3d 1135, 815 N.E.2d 476, 480, 287 Ill.Dec. 73 (4th Dist. 2004); Peterson v. Ress Enterprises, Inc., 292 Ill.App.3d 566, 686 N.E.2d 631, 640, 226 Ill.Dec. 848 (1st Dist. 1997); Wagner v. City of Chicago, 254 Ill.App.3d 842, 626 N.E.2d 1227, 1234, 193 Ill.Dec. 676 (1st Dist. 1993)) or “whether a party [shows] a deliberate or contumacious flouting of judicial authority” (Profesco Corp. v. Dehm, 196 Ill.App.3d 127, 553 N.E.2d 101, 104, 142 Ill.Dec. 751 (4th Dist. 1990)). See also Sander v. Dow Chemical Co., 166 Ill.2d 48, 651 N.E.2d 1071, 209 Ill.Dec. 623 (1995); Ruane v. Amore, 287 Ill.App.3d 465, 677 N.E.2d 1369, 222 Ill.Dec. 570 (1st Dist. 1997); H & H Sand & Gravel Haulers Co. v. Coyne Cylinder Co., 260 Ill.App.3d 235, 632 N.E.2d 697, 702, 198 Ill.Dec. 367 (2d Dist. 1994).



The court in Hartnett v. Stack, 241 Ill.App.3d 157, 607 N.E.2d 703, 714, 180 Ill.Dec. 634 (2d Dist. 1993), recognized that a “court may also consider the importance of the information a party is seeking to have produced” when fashioning an order. See also American Family Insurance Co. v. Village Pontiac-GMC, Inc., 223 Ill.App.3d 624, 585 N.E.2d 1115, 1118, 166 Ill.Dec. 93 (2d Dist. 1992); Peterson, supra, 686 N.E.2d at 640 (court may consider importance of information or product sought). The trial court is not required to make an express finding that the noncomplying party’s conduct was unreasonable or contumacious. Antkiewicz v. Pax/Indianapolis, Inc., 254 Ill.App.3d 723, 627 N.E.2d 185, 190, 194 Ill.Dec. 69 (1st Dist. 1993). However, S.Ct. Rule 219(c) states that when a sanction is imposed, the judge must state with specificity the reasons for and basis of any sanction imposed either in the judgment order itself or in a separate written order. c. [10.26] Failure To Comply with Order There must be a failure to comply with an order entered under the discovery rules. While a party may be sanctioned for failure to comply with the Supreme Court Rules regarding discovery (S.Ct. Rule 219(c); Patel v. Illinois State Medical Society, 298 Ill.App.3d 356, 698 N.E.2d 588, 595, 232 Ill.Dec. 497 (1st Dist. 1998)), preliminary motions should be filed and orders compelling discovery entered and violated before sanctions are imposed. Kellett v. Roberts, 276 Ill.App.3d 164, 658 N.E.2d 496, 503, 213 Ill.Dec. 26 (2d Dist. 1995) (violation of discovery order should be established prior to imposition of sanctions); Sander v. Dow Chemical Co., 166 Ill.2d 48, 651 N.E.2d 1071, 209 Ill.Dec. 623 (1995) (discovery order must be violated before sanctions can be imposed). When a court has entered a discovery order that is subsequently ignored, sanctions may be imposed without proof of unreasonable refusal to obey the order. Farley Metals, Inc. v. Barber Colman Co., 269 Ill.App.3d 104, 645 N.E.2d 964, 206 Ill.Dec. 712 (1st Dist. 1994); North Park Bus Service, Inc. v. Pastor, 39 Ill.App.3d 406, 349 N.E.2d 664, 666 (1st Dist. 1976). The particular sanction imposed, however, must be in accord with the intent and spirit of S.Ct. Rule 219, and a drastic punishment, such as dismissal, should not be invoked unless there is a deliberate or unwarranted disregard of a court’s authority. Adams v. Bath & Body Works, Inc., 358 Ill.App.3d 387, 830 N.E.2d 645, 653, 294 Ill.Dec. 233 (1st Dist. 2005); King v. Clay, 335 Ill.App.3d 923, 781 N.E.2d 464, 468, 269 Ill.Dec. 667 (1st Dist. 2002); Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 692 N.E.2d 286, 229 Ill.Dec. 513 (1998). A judgment by default for failure to comply should be used as a last resort and should be set aside if it will not cause hardship to proceed to trial on the merits. Adams, supra; Kmoch v. Klein, 245 Ill.App.3d 308, 614 N.E.2d 508, 511, 185 Ill.Dec. 374 (2d Dist. 1993); Vortanz v. Elmhurst Memorial Hospital, 179 Ill.App.3d 584, 534 N.E.2d 625, 629, 128 Ill.Dec. 443 (2d Dist. 1989). d. [10.27] Need for a Just Order The order must be just. A “just order” has been defined as one that, to the degree possible, ensures both discovery and trial on the merits. Martinez v. Pfizer Laboratories Division, 216 Ill.App.3d 360, 576 N.E.2d 311, 320, 159 Ill.Dec. 642 (1st Dist. 1991); Cirrincione v. Westminster Gardens Limited Partnership, 352 Ill.App.3d 755, 816 N.E.2d 730, 738, 287 Ill.Dec.



763 (1st Dist. 2004); Adams v. Bath & Body Works, Inc., 358 Ill.App.3d 387, 830 N.E.2d 645, 654, 294 Ill.Dec. 233 (1st Dist. 2005) (also noting that just order is one that is commensurate with seriousness of violation), citing Hanley v. City of Chicago, 343 Ill.App.3d 49, 795 N.E.2d 808, 813 – 814, 277 Ill.Dec. 140 (1st Dist. 2003); Besco v. Henslee, Monek & Henslee, 297 Ill.App.3d 778, 701 N.E.2d 1126, 233 Ill.Dec. 852 (3d Dist. 1998); A & A, Inc. v. Great Central Insurance Co., 259 Ill.App.3d 73, 630 N.E.2d 1002, 1006, 196 Ill.Dec. 837 (1st Dist. 1994); Wakefield v. Sears, Roebuck & Co., 228 Ill.App.3d 220, 592 N.E.2d 539, 542, 170 Ill.Dec. 103 (1st Dist. 1992); Wyrick v. Time Chemical, Inc., 191 Ill.App.3d 1041, 548 N.E.2d 524, 526, 139 Ill.Dec. 139 (1st Dist. 1989). Key factors in establishing an order’s just character are the reasons for noncompliance by the offending party (Estate of Fado, 43 Ill.App.3d 759, 357 N.E.2d 195, 198, 2 Ill.Dec. 218 (1st Dist. 1976)): whether there was a deliberate attempt to thwart or unduly delay discovery (612 North Michigan Avenue Building Corp. v. Factsystem, Inc., 34 Ill.App.3d 922, 340 N.E.2d 678, 682 (1st Dist. 1975)); whether prejudice or hardship to the moving party resulted by reason of any delay (Harris v. Harris, 196 Ill.App.3d 815, 555 N.E.2d 10, 16, 144 Ill.Dec. 113 (1st Dist. 1990)); and whether the sanction imposed was reasonably related to the type and degree of discovery abuse (Buehler v. Whalen, 70 Ill.2d 51, 374 N.E.2d 460, 467, 15 Ill.Dec. 852 (1977)). See also Shimanovsky v. General Motors Corp., 271 Ill.App.3d 1, 648 N.E.2d 91, 96, 207 Ill.Dec. 635 (1st Dist. 1994) (key factor in finding just order is reason for noncompliance by offending party), aff’d, 181 Ill.2d 112 (1998). e. [10.28] Imposition of Sanctions S.Ct. Rule 219(c) provides that a trial court may impose appropriate sanctions against a party or a party’s attorney. In some cases, sanctions may be imposed against a party and its attorney provided there is evidence that both impeded compliance with discovery requests or willfully disregarded the trial court’s orders regarding discovery. See Morales v. Mongolis, 293 Ill.App.3d 660, 688 N.E.2d 1196, 228 Ill.Dec. 219 (1st Dist. 1997) (affirming sanctions against both defendant and her attorneys). Cf. Blott v. Hanson, 283 Ill.App.3d 656, 670 N.E.2d 345, 218 Ill.Dec. 848 (2d Dist. 1996) (vacating sanction as to defendant’s law firm only and affirming sanction against defendant for failure to comply with discovery); Hartnett v. Stack, 241 Ill.App.3d 157, 607 N.E.2d 703, 715, 180 Ill.Dec. 634 (2d Dist. 1993). (1) [10.29] Stay of further proceedings In practice, the most common sanction imposed is the least severe: a stay of further proceedings until there is compliance with an order or rule. Many courts use this sanction to ensure that discovery proceeds in an orderly fashion and to prevent a dilatory party from profiting by its delay. This sanction is used in conjunction with the power conferred by S.Ct. Rules 201(c)(1) (protective orders) and 201(c)(2) (supervision of discovery). (2) [10.30] Barring testimony Another sanction that courts may impose is the barring of testimony from a witness. Chapman v. Hubbard Woods Motors, Inc., 351 Ill.App.3d 99, 812 N.E.2d 389, 399, 285 Ill.Dec. 569 (1st Dist. 2004) (noting that barring opinion witness’ testimony is appropriate and available



sanction for party’s failure to adequately disclose witness’ opinions), citing LoCoco v. XL Disposal Corp., 307 Ill.App.3d 684, 717 N.E.2d 823, 829, 240 Ill.Dec. 474 (3d Dist. 1999); Ashpole v. Brunswick Bowling & Billiards Corp., 297 Ill.App.3d 725, 697 N.E.2d 1238, 1239, 232 Ill.Dec. 308 (2d Dist. 1998); Neal v. Nimmagadda, 279 Ill.App.3d 834, 665 N.E.2d 424, 430, 216 Ill.Dec. 364 (1st Dist. 1996); Smith v. Black & Decker (U.S.), Inc., 272 Ill.App.3d 451, 650 N.E.2d 1108, 1116, 209 Ill.Dec. 135 (3d Dist. 1995). Barring the testimony of a witness is a drastic sanction and should not be used often. H & H Sand & Gravel Haulers Co. v. Coyne Cylinder Co., 260 Ill.App.3d 235, 632 N.E.2d 697, 702, 198 Ill.Dec. 367 (2d Dist. 1994); McGovern v. Kaneshiro, 337 Ill.App.3d 24, 785 N.E.2d 108, 119, 271 Ill.Dec. 457 (1st Dist. 2003) (noting that barring opinion witness’ testimony in toto, however, is drastic sanction and should be exercised with caution); Neal, supra. Generally, this sanction is imposed because of the failure of a party to disclose the existence of a witness of whom it was aware when responses to discovery were filed (see, e.g., Neal, supra; Bradfield v. Illinois Central Gulf R.R., 137 Ill.App.3d 19, 484 N.E.2d 365, 368, 91 Ill.Dec. 806 (5th Dist. 1985), aff’d, 115 Ill.2d 471 (1987); Mason v. Village of Bellwood, 37 Ill.App.3d 543, 346 N.E.2d 175, 177 (2d Dist. 1976)) or if there is a failure to timely supplement discovery responses prior to trial (Warrender v. Millsop, 304 Ill.App.3d 260, 710 N.E.2d 512, 237 Ill.Dec. 882 (2d Dist. 1999)). In determining whether to exclude a witness, there are a number of factors a court should balance: (a) surprise to the adverse party, (b) prejudicial effect of the testimony, (c) nature of the testimony, (d) diligence of the adverse party, (e) timely objection to the testimony, and (f) the good faith of the party calling the witness. Shimanovsky v. General Motors Corp., 271 Ill.App.3d 1, 648 N.E.2d 91, 96, 207 Ill.Dec. 635 (1st Dist. 1994), aff’d, 181 Ill.2d 112 (1998); Boatmen’s National Bank of Belleville v. Martin, 155 Ill.2d 305, 614 N.E.2d 1194, 1199, 185 Ill.Dec. 509 (1993); Nedzvekas v. Fung, 374 Ill.App.3d 618, 872 N.E.2d 431, 435, 313 Ill.Dec. 448 (1st Dist. 2007); Bill Marek’s Competitive Edge, Inc. v. Mickelson Group, Inc., 346 Ill.App.3d 996, 806 N.E.2d 280, 289, 282 Ill.Dec. 305 (2d Dist. 2004); Sullivan v. Edward Hospital, 209 Ill.2d 100, 806 N.E.2d 645, 652, 282 Ill.Dec. 348 (2004). When an unrevealed witness appears at trial, a judge has a duty to delay the trial to determine and weigh the aforementioned considerations. Wright v. Royse, 43 Ill.App.2d 267, 193 N.E.2d 340, 350 (3d Dist. 1963). Some judges think interrupting a trial to permit the discovery deposition of a surprise witness is a sufficient sanction. However, this type of sanction is frequently no sanction at all; it is often fundamentally unfair to the party who has been diligent in discovery and promotes sharp practices among attorneys. Unless a diligent party has rebuttal testimony readily available and is not prejudiced in any fashion, this “sanction” should not be invoked. Contra City of Chicago v. Sievert Electric Co., 134 Ill.App.3d 552, 481 N.E.2d 1, 3 – 4, 89 Ill.Dec. 649 (1st Dist. 1985). A lower court may abuse its discretion if it grants sanctions that are too lenient for a party failing to appear for depositions. See In re Marriage of Daebel, 404 Ill.App.3d 473, 935 N.E.2d 1131, 1142, 343 Ill.Dec. 903 (2d Dist. 2010). Daebel was a dissolution action in which the appellate court found that the trial court’s sanction of ordering a wife to pay attorneys’ fees for her failure to sit for a deposition was too lenient and found that the husband was also entitled to have the wife’s testimony barred. 935 N.E.2d at 1142 – 1143. In holding that stricter sanctions were appropriate, the appellate court analyzed, in detail, the six factors the trial court used in determining the sanctions, and found that they all weighed in favor of the moving party



(analyzing the following six factors: surprise to the adverse party; prejudicial effect of the proffered testimony or evidence; nature of the testimony or evidence; the diligence of the adverse party in seeking discovery; the timeliness of the adverse party’s objection to the testimony or evidence; and the good faith of the party offering the testimony or evidence). Daebel contains portions of the trial transcript and serves as an example of how the moving party preserved discovery issues for appeal. Reviewing courts are increasingly intolerant of parties that do not respond to proper discovery requests. For example, failure to disclose a key witness in the face of diligent discovery requests and orders requiring compliance may constitute such a serious violation that a trial court would abuse its discretion if it did not exclude the witness. Ashford v. Ziemann, 99 Ill.2d 353, 459 N.E.2d 940, 946 – 947, 76 Ill.Dec. 805 (1984); Ashpole, supra, 697 N.E.2d at 1241. Problems inherent in the late disclosure or nondisclosure of witnesses are exacerbated when expert testimony is involved. In light of this, S.Ct. Rule 213(f) requires much more detailed disclosure with regard to controlled expert witnesses than it does with regard to lay witnesses or independent expert witnesses. With regard to controlled experts, a party must disclose (a) the subject matter on which the witness will testify (“subject matter” meaning the gist of the testimony on each topic the witness will address), (b) the conclusions and opinions of the witness and the bases therefor, (c) the qualifications of the witness, and (d) any reports prepared by the witness about the case. A party is required to disclose more information regarding controlled experts because the party can count on full cooperation from controlled experts. Furthermore, S.Ct. Rule 213(g) limits expert testimony at trial to “information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery deposition.” The courts recognize that these disclosures are mandatory and must be strictly complied with. Sullivan, supra (recognizing that compliance is more strictly construed under Rule 213 than it was under previous S.Ct. Rule 220); Foley v. Fletcher, 361 Ill.App.3d 39, 836 N.E.2d 667, 674, 296 Ill.Dec. 916 (1st Dist. 2005). When a party fails to strictly comply, it will be sanctioned. However, whether to admit expert testimony is still within the discretion of the trial court, and the trial court’s decision will be overturned only when there is abuse of discretion. Sullivan, supra. Cases interpreting S.Ct. Rule 213(f) focus mostly on whether a controlled expert’s testimony goes beyond the scope of its disclosure. If the expert’s testimony goes to a new, undisclosed theory or presents new reasons in support of the expert’s opinion, courts have stricken the testimony as a sanction. Sullivan, supra; Clayton v. County of Cook, 346 Ill.App.3d 367, 805 N.E.2d 222, 281 Ill.Dec. 854 (1st Dist. 2003); Thomas v. Johnson Controls, Inc., 344 Ill.App.3d 1026, 801 N.E.2d 90, 279 Ill.Dec. 798 (1st Dist. 2003). However, the courts have also found that a “witness may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion, rather than new reasons for it.” Foley, supra, 836 N.E.2d at 674. In such a case, the expert testimony will not be stricken. Spaetzel v. Dillon, 393 Ill.App.3d 806, 914 N.E.2d 532, 539, 333 Ill.Dec. 113 (1st Dist. 2009), held that expert witness testimony at trial was permissible, as it was an “elaboration on, or a logical corollary to, the originally revealed opinion” that had been disclosed in S.Ct. Rule 213 disclosures. Iaccino v. Anderson, 406 Ill.App.3d 397, 940 N.E.2d 742, 753, 346 Ill.Dec. 373 (1st



Dist. 2010) (general reference by defendant’s expert witness at deposition was consistent with trial testimony when expert referred to medical literature in support of his testimony and was not violation of Rule 213). However, a court may sanction a party for failing to properly disclose expert witness testimony pursuant to S.Ct. Rule 213 by striking the testimony. Wilbourn v. Cavalenes, 398 Ill.App.3d 837, 923 N.E.2d 937, 952 – 953, 338 Ill.Dec. 77 (1st Dist. 2010) (finding that five of six factors weighed in favor of trial court’s decision to strike contested expert witness’ testimony, and thus trial court did not abuse its discretion). (3) [10.31] Extreme sanctions Although there is authority permitting extreme sanctions, such as striking or debarring pleadings or defaulting or dismissing an offending party (see, e.g., Vaughn v. Northwestern Memorial Hospital, 210 Ill.App.3d 253, 569 N.E.2d 77, 83, 155 Ill.Dec. 77 (1st Dist. 1991); Shapira v. Lutheran General Hospital, 199 Ill.App.3d 479, 557 N.E.2d 351, 356, 145 Ill.Dec. 581 (1st Dist. 1990); Illinois Environmental Protection Agency v. Celotex Corp., 168 Ill.App.3d 592, 522 N.E.2d 888, 891 – 892, 119 Ill.Dec. 226 (3d Dist. 1988)), those types of sanctions are considered drastic action. Donner v. Deere & Co., 255 Ill.App.3d 837, 628 N.E.2d 1171, 1173 – 1174, 195 Ill.Dec. 707 (3d Dist. 1993); John Biestek & Associates, Ltd. v. Kelly, 192 Ill.App.3d 301, 550 N.E.2d 230, 232, 140 Ill.Dec. 594 (1st Dist. 1989). Such sanctions are not to be invoked except when a party’s actions show a deliberate and contumacious or unwarranted disregard of court authority. Shimanovsky v. General Motors Corp., 271 Ill.App.3d 1, 648 N.E.2d 91, 96, 207 Ill.Dec. 635 (1st Dist. 1994), aff’d, 181 Ill.2d 112 (1998); Adams v. Bath & Body Works, Inc., 358 Ill.App.3d 387, 830 N.E.2d 645, 653, 294 Ill.Dec. 233 (1st Dist. 2005); Perry v. Minor, 319 Ill.App.3d 703, 745 N.E.2d 113, 120, 253 Ill.Dec. 339 (1st Dist. 2001); Byrnes v. Fiscella, 217 Ill.App.3d 831, 578 N.E.2d 204, 210, 161 Ill.Dec. 77 (1st Dist. 1991). If pleadings are stricken, they must bear some reasonable relationship to the information withheld. People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 226 N.E.2d 6, 16 (1967); Pickering v. Owens-Corning Fiberglas Corp., 265 Ill.App.3d 806, 638 N.E.2d 1127, 1137, 203 Ill.Dec. 1 (5th Dist. 1994); Johnson v. Owens-Corning Fiberglas Corp., 233 Ill.App.3d 425, 599 N.E.2d 129, 135, 174 Ill.Dec. 583 (4th Dist. 1992). Cf. Colls v. City of Chicago, 212 Ill.App.3d 904, 571 N.E.2d 951, 985 – 986, 156 Ill.Dec. 971 (1st Dist. 1991). Dismissal of a complaint is a drastic sanction and is justified if a “party dismissed has shown a deliberate and contumacious disregard for the court’s authority.” Cutler v. Northwest Suburban Community Hospital, Inc., 405 Ill.App.3d 1052, 939 N.E.2d 1032, 1047, 345 Ill.Dec. 852 (2d Dist. 2010), quoting Sander v. Dow Chemical Co., 166 Ill.2d 48, 651 N.E.2d 1071, 1081, 209 Ill.Dec. 623 (1995). Courts in Illinois have employed a two-part test to determine whether dismissal with prejudice is justified as a sanction. “First, the court must find that the sanctioned party ‘has shown a “deliberate and contumacious disregard for the court’s authority,” ’ ” quoting Gonzalez v. Nissan North America, Inc., 369 Ill.App.3d 460, 860 N.E.2d 386, 390, 307 Ill.Dec. 732 (1st Dist. 2006), and, “[s]econd, all other enforcement measures must be inadequate.” [Citation omitted.] Santiago v. E.W. Bliss Co., 406 Ill.App.3d 449, 941 N.E.2d 275, 286, 346 Ill.Dec. 717 (1st Dist. 2010). See also Peal v. Lee, 403 Ill.App.3d 197, 933 N.E.2d 450, 458, 342 Ill.Dec. 864 (1st Dist. 2010), quoting Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 692



N.E.2d 286, 291, 229 Ill.Dec. 513 (1998). Dismissal with prejudice may be an appropriate sanction when, for example, a party intentionally files a complaint under a false name and responds to S.Ct. Rule 213 interrogatories under a false name. Santiago, supra. See also Santiago v. E.W. Bliss Co., 2012 IL 111792, ¶¶15 – 20, 973 N.E.2d 858, 362 Ill.Dec. 462. Another example of when dismissal was found to be an appropriate sanction is Peal, supra, in which the appellate court affirmed the trial court’s sanction of dismissing the plaintiff’s claim, with prejudice, after the plaintiff failed to produce documents that had been stored on his computer. In Peal, the defendants filed a motion to compel, requesting that the plaintiff make his personal computers available to be examined, and the court ordered Peal to produce the requested computer twice. When the computer was finally examined, a forensics expert determined that the plaintiff had used seven “wiping programs” on the computer to permanently delete data from the hard drive, and the plaintiff had not provided external storage devices that had been connected to it. 933 N.E.2d at 456. In affirming the trial court’s holding, the appellate court reviewed the six factors that the trial court used in determining the sanction and found that the trial court had not abused its discretion in imposing the sanction. 933 N.E.2d at 457. Severe sanctions will be imposed when they are justified. Consider the dicta of the late Justice Dooley, anticipating both a willingness by contemporary courts to impose sanctions and the theme of general deterrence discussed in §10.22 above:

Our discovery procedures are meaningless unless a violation entails a penalty proportionate to the gravity of the violation. Discovery for all parties will not be effective unless trial courts do not countenance violations, and unhesitatingly impose sanctions proportionate to the circumstances. These are already in Rule 219(c). It provides for varied sanctions, including contempt proceedings. But a contempt procedure is hardly a sanction in reality. The order can, of course, be appealed. The worst penalty is the payment of a nominal fine. Meanwhile, the opposing party may well have been forced to trial without truth, and truth is the heart of all discovery. Buehler v. Whalen, 70 Ill.2d 51, 374 N.E.2d 460, 467, 15 Ill.Dec. 852 (1977).

However, harsh sanctions are not encouraged. Kubian v. Labinsky, 178 Ill.App.3d 191, 533 N.E.2d 22, 25 – 26, 127 Ill.Dec. 404 (1st Dist. 1988); Cometo v. Foster McGaw Hospital, 167 Ill.App.3d 1023, 522 N.E.2d 117, 121 – 122, 118 Ill.Dec. 662 (1st Dist. 1988). Dismissal is considered an inappropriate discovery sanction when trial on the merits can be had without hardship to the parties. Cirrincione v. Westminster Gardens Limited Partnership, 352 Ill.App.3d 755, 816 N.E.2d 730, 738, 287 Ill.Dec. 763 (1st Dist. 2004); Blakey v. Gilbane Building Corp., 303 Ill.App.3d 872, 708 N.E.2d 1187, 237 Ill.Dec. 147 (4th Dist. 1999). Cf. Kmoch v. Klein, 245 Ill.App.3d 308, 614 N.E.2d 508, 511, 185 Ill.Dec. 374 (2d Dist. 1993). Furthermore, in Spiller v. Continental Tube Co., 95 Ill.2d 423, 447 N.E.2d 834, 837 – 838, 69 Ill.Dec. 399 (1983), the Supreme Court suggested that, in considering whether to impose severe sanctions, a reviewing court may look to the conduct of both parties. In place of, or in addition to, other sanctions, S.Ct. Rule 219(c) provides that a party may be made to pay the reasonable expenses, including attorneys’ fees, incurred by an opposing party as a result of misconduct. Kilpatrick v. First Church of Nazarene, 182 Ill.App.3d 461, 538 N.E.2d



136, 140, 130 Ill.Dec. 925 (4th Dist. 1989); Ritter v. Rush-Presbyterian-St. Luke’s Medical Center, 177 Ill.App.3d 313, 532 N.E.2d 327, 126 Ill.Dec. 642 (1st Dist. 1988); Rush v. Leader Industries, Inc., 176 Ill.App.3d 803, 531 N.E.2d 863, 126 Ill.Dec. 236 (1st Dist. 1988); Hartnett v. Stack, 241 Ill.App.3d 157, 607 N.E.2d 703, 715, 180 Ill.Dec. 634 (2d Dist. 1993). S.Ct. Rule 219(c) also provides for contempt proceedings against a party to compel obedience. As noted above, the effectiveness of this sanction in practice has been questioned. Buehler, supra. For cases in which a money judgment is entered against a party subject to sanctions, S.Ct. Rule 219(c) provides that the court may 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. This rule makes it clear that there is a wide variety of sanctions available to the trial judge:

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. 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. S.Ct. Rule 219(c).

S.Ct. Rule 219(d) permits the suppression of information obtained through abuse of discovery procedures. Ragan v. Columbia Mutual Insurance Co., 183 Ill.2d 342, 701 N.E.2d 493, 233 Ill.Dec. 643 (1998). A trial court is also specifically empowered to use any of the sanctions of Rule 219(c) if a party abuses the discovery rules. The granting of a new trial is an appropriate sanction when noncompliance is substantial, is not in good faith, and prejudices a diligent party. Biehler v. White Metal Rolling & Stamping Corp., 30 Ill.App.3d 435, 333 N.E.2d 716, 722 (3d Dist. 1975). See, e.g., Delvecchio v. General Motors Corp., 255 Ill.App.3d 189, 625 N.E.2d 1022, 192 Ill.Dec. 867 (5th Dist. 1993). When discovery violations are found to be non-willful or the evidence withheld not relevant, however, the granting of a new trial is not an appropriate sanction. Lubbers v. Norfolk & Western Ry., 147 Ill.App.3d 501, 498 N.E.2d 357, 369, 101 Ill.Dec. 175 (4th Dist. 1986). (4) [10.32] Burden on sanctioned party Once a trial court imposes sanctions for noncompliance, a sanctioned party has the burden of establishing that its noncompliance was reasonable or justified by extenuating circumstances or events. Harris v. Harris, 196 Ill.App.3d 815, 555 N.E.2d 10, 16, 144 Ill.Dec. 113 (1st Dist.



1990); Kubian v. Labinsky, 178 Ill.App.3d 191, 533 N.E.2d 22, 25 – 26, 127 Ill.Dec. 404 (1st Dist. 1988); Blott v. Hanson, 283 Ill.App.3d 656, 670 N.E.2d 345, 218 Ill.Dec. 848 (2d Dist. 1996); H & H Sand & Gravel Haulers Co. v. Coyne Cylinder Co., 260 Ill.App.3d 235, 632 N.E.2d 697, 701, 198 Ill.Dec. 367 (2d Dist. 1994); Hartnett v. Stack, 241 Ill.App.3d 157, 607 N.E.2d 703, 715, 180 Ill.Dec. 634 (2d Dist. 1993); Cruz v. Columbus-Cuneo-Cabrini Medical Center, 264 Ill.App.3d 633, 636 N.E.2d 908, 201 Ill.Dec. 476 (1st Dist. 1994); Farley Metals, Inc. v. Barber Colman Co., 269 Ill.App.3d 104, 645 N.E.2d 964, 968, 206 Ill.Dec. 712 (1st Dist. 1994). f. [10.33] Cautionary Note It must be remembered that the sanctions of S.Ct. Rule 219 are applicable only to violations of the discovery processes set forth in S.Ct. Rules 210 – 218 and cannot be imposed for non-discovery abuses, such as a failure to file timely pleadings. Alswang v. Claybon, 53 Ill.App.3d 961, 369 N.E.2d 104, 105 – 106, 11 Ill.Dec. 650 (1st Dist. 1977). Conversely, sanctions authorized outside the discovery context, such as summary judgment, ought not be imposed as discovery sanctions. Brandeis v. Salafsky, 206 Ill.App.3d 31, 563 N.E.2d 1026, 1029, 150 Ill.Dec. 899 (1st Dist. 1990); Wadden v. Village of Woodridge, 193 Ill.App.3d 231, 549 N.E.2d 1280, 1287, 140 Ill.Dec. 408 (2d Dist. 1990). For additional sanctions against parties, see sanctions relating to particular discovery described in §§10.36 – 10.39 below. 2. [10.34] Sanctions Against Nonparties Although S.Ct. Rule 219(c) is directed primarily to parties or to persons acting at the instance of or in collusion with parties, the rule also generally authorizes contempt proceedings against any person to compel obedience to a subpoena issued or order entered under the discovery rules. National Wrecking Co. v. Midwest Terminal Corp., 234 Ill.App.3d 750, 601 N.E.2d 999, 1010, 176 Ill.Dec. 301 (1st Dist. 1992). Additionally, Rule 219(a) specifically provides that nonparty deponents are exposed to sanctions in refusing to answer a question propounded on oral examination. The type of contempt contemplated by S.Ct. Rule 219(c) is civil contempt. It is instituted when a person has failed to perform an affirmative act that has been ordered for the benefit of an opposing party (e.g., testify at a deposition pursuant to subpoena). In citing a nonparty for civil contempt, courts seek to serve a dual function: to vindicate authority and to advance the relief granted to a party. Generally, contempt is issued to coerce or obtain compliance with a court order rather than to punish a contemnor. In re Marriage of Morse, 240 Ill.App.3d 296, 607 N.E.2d 632, 637, 180 Ill.Dec. 563 (2d Dist. 1993); In re Estate of Maslowe, 133 Ill.App.3d 1043, 479 N.E.2d 1180, 1183, 89 Ill.Dec. 174 (2d Dist. 1985). 3. [10.35] Sanctions Against Attorneys S.Ct. Rule 219(a) provides that if a court finds unjustified a party’s refusal to answer a deposition question or an interrogatory or to comply with a request for production, the court may order the party or its attorney to pay any reasonable expense incurred in obtaining an order to



compel. Rule 219(a) also authorizes contempt proceedings to compel obedience by any person to an order entered under the discovery rules. Civil contempt has been used as a vehicle for appellate review. See §10.19 above. Additionally, the Committee Comments to Rule 219(c) show that monetary sanctions against offending counsel were specifically contemplated. See Committee Comments, S.Ct. Rule 219(c) (June 1, 1995); §§10.22, 10.23 above. S.Ct. Rule 219(c) authorizes a trial court to order an offending party or its attorney to pay reasonable expenses, including a reasonable attorney’s fee incurred as a result of discovery misconduct, in lieu of or in addition to the other remedies provided in the rule. Clymore v. Hayden, 278 Ill.App.3d 862, 663 N.E.2d 755, 215 Ill.Dec. 512 (4th Dist. 1996). Several appellate decisions have approved the entry of monetary sanctions against opposing counsel for discovery abuses. See Morales v. Mongolis, 293 Ill.App.3d 660, 688 N.E.2d 1196, 228 Ill.Dec. 219 (1st Dist. 1997) (imposing monetary sanctions against party and her attorney); Martzaklis v. 5559 Belmont Corp., 157 Ill.App.3d 731, 510 N.E.2d 1148, 1150 – 1151, 110 Ill.Dec. 117 (1st Dist. 1987) (imposing sanctions against attorney for coercing and intimidating witnesses); Transamerica Insurance Group v. Lee, 164 Ill.App.3d 945, 518 N.E.2d 413, 415 – 416, 115 Ill.Dec. 888 (1st Dist. 1987) (imposing sanctions for falsely answering interrogatory). See also Golembiewski v. Hallberg Insurance Agency, Inc., 262 Ill.App.3d 1082, 635 N.E.2d 452, 200 Ill.Dec. 113 (1st Dist. 1994). Cf. Dyduch v. Crystal Green Corp., 221 Ill.App.3d 474, 582 N.E.2d 302, 307, 164 Ill.Dec. 94 (2d Dist. 1991) (Rule 219(c) does not authorize punitive sanctions, and monetary sanctions pursuant to Rule 219(c) are limited to reasonable expenses incurred by innocent party as result of misconduct); Hartnett v. Stack, 241 Ill.App.3d 157, 607 N.E.2d 703, 180 Ill.Dec. 634 (2d Dist. 1993) (monetary sanction must be related to and be result of specific conduct involved in discovery). C. Sanctions Relating to Particular Discovery 1. [10.36] Depositions S.Ct. Rule 219(a) provides that if a party or other deponent refuses to answer any question propounded on oral examination, the proponent of the question may, on notice, move for an order compelling an answer. See §10.7 above. “If the court finds that the deponent failed or refused to answer questions and that the failure or refusal was ‘without substantial justification’, the court is required to order the offending party or deponent to pay to the aggrieved party the amount of the reasonable expenses incurred in obtaining an order compelling compliance with the rules of discovery.” Tedrick v. Community Resource Center, Inc., 373 Ill.App.3d 761, 869 N.E.2d 421, 429, 431, 311 Ill.Dec. 747 (5th Dist. 2007), quoting Van Hyning v. Hyk, 78 Ill.App.3d 721, 397 N.E.2d 566, 568, 34 Ill.Dec. 110 (4th Dist. 1979), and Lynch v. Mullenix, 48 Ill.App.3d 963, 363 N.E.2d 645, 647, 6 Ill.Dec. 831 (3d Dist. 1977). If a party or its attorney attends a scheduled deposition that does not take place because the party serving notice fails to attend or proceed or fails to serve a subpoena or notice as required or because the deponent does not attend, a court may order the offending party to pay any reasonable expenses incurred in attending the deposition, including reasonable attorneys’ fees. S.Ct. Rule 209.



Repeated, unexcused failure of a party to appear for deposition will justify the entry of extreme sanctions, such as default or dismissal. Harris v. Harris, 196 Ill.App.3d 815, 555 N.E.2d 10, 14, 144 Ill.Dec. 113 (1st Dist. 1990); Klairmont v. Elmhurst Radiologists, S.C., 200 Ill.App.3d 638, 558 N.E.2d 328, 331, 146 Ill.Dec. 365 (1st Dist. 1990); Gallo v. Henke, 107 Ill.App.3d 21, 436 N.E.2d 1068, 1072, 62 Ill.Dec. 766 (2d Dist. 1982); Rosen v. Larkin Center, Inc., 2012 IL App (2d) 120589, ¶22, 982 N.E.2d 944, 367 Ill.Dec. 794. It is an abuse of discretion to use dismissal of a suit as a sanction for failure to attend a single deposition when there is no evidence of willful obstruction nor any evidence of repeated discovery noncompliance. In re Marriage of Lai, 253 Ill.App.3d 111, 625 N.E.2d 330, 334 – 335, 192 Ill.Dec. 370 (1st Dist. 1993); Brandt v. John S. Tilley Ladders Co., 145 Ill.App.3d 304, 495 N.E.2d 1269, 1271, 99 Ill.Dec. 534 (1st Dist. 1986). 2. [10.37] Interrogatories If a party fails to answer any interrogatory properly served, the proponent of the interrogatory may, on notice, move for an order compelling an answer. The court may award sanctions either for or against the moving party. S.Ct. Rule 219(a). The varied sanctions of S.Ct. Rule 219(c) may also be imposed by a court for a failure to answer interrogatories. See, e.g., Ashford v. Ziemann, 99 Ill.2d 353, 459 N.E.2d 940, 76 Ill.Dec. 805 (1984); Dalan/Jupiter, Inc., ex rel. JRC Midway Marketplace, L.P. v. Draper & Kramer, Inc., 372 Ill.App.3d 362, 865 N.E.2d 442, 450, 310 Ill.Dec. 118 (1st Dist. 2007) (appropriate sanction, if any, to be imposed for party’s failure to list witness in response to proper interrogatory is within discretion of trial court); Clayton v. County of Cook, 346 Ill.App.3d 367, 805 N.E.2d 222, 232, 281 Ill.Dec. 854 (1st Dist. 2003) (noting that circuit court has discretion to shape remedy following violation of S.Ct. Rule 213 interrogatories governing opinion testimony, including exclusion or limitation of scope of expert testimony), citing Boland v. Kawasaki Motors Manufacturing Corporation, USA, 309 Ill.App.3d 645, 722 N.E.2d 1234, 1240 – 1242, 243 Ill.Dec. 165 (4th Dist. 2000). Extreme sanctions, including dismissal, are authorized when court orders are repeatedly ignored. Towns v. Yellow Cab Co., 73 Ill.2d 113, 382 N.E.2d 1217, 1220 – 1221, 22 Ill.Dec. 519 (1978); Clymore v. Hayden, 278 Ill.App.3d 862, 663 N.E.2d 755, 215 Ill.Dec. 512 (4th Dist. 1996); Antkiewicz v. Pax/Indianapolis, Inc., 254 Ill.App.3d 723, 627 N.E.2d 185, 188 – 190, 194 Ill.Dec. 69 (1st Dist. 1993). Cf. Kmoch v. Klein, 245 Ill.App.3d 308, 614 N.E.2d 508, 511 – 512, 185 Ill.Dec. 374 (2d Dist. 1993) (reversing judgment of dismissal). In Buehler v. Whalen, 70 Ill.2d 51, 374 N.E.2d 460, 467, 15 Ill.Dec. 852 (1977), a case in which the court found that a defendant provided false answers to interrogatories under oath, the Supreme Court held that a trial court would have been justified in striking the defendant’s answer and submitting the case to the jury only on the issue of damages. See the quotation from Justice Dooley in Buehler in §10.31 above. When interrogatories are addressed to a corporate litigant, the officer or agent who answers the interrogatories must supply the material information that is available to the party and search the corporate memory by investigating corporate records and trying to ascertain the knowledge of other corporate agents. This provision was added to ensure that a corporation “may not avoid answering an interrogatory by disclaiming personal knowledge of the matter on the part of the



answering official.” Committee Comments, S.Ct. Rule 213(d) (June 1, 1995). Failure to do so may be held an unreasonable refusal to comply with discovery rules, and sanctions may be imposed, including barring witnesses from giving testimony reasonably related to the discovery violation. Campen v. Executive House Hotel, Inc., 105 Ill.App.3d 576, 434 N.E.2d 511, 518, 61 Ill.Dec. 358 (1st Dist. 1982). See also S.Ct. Rule 213(d). Also, it should be noted that under the federal rules, the attorney for a party is required to sign every request and response for electronic discovery, certifying that the attorney, after reasonable inquiry, has determined that the discovery disclosure is correct and complete. Improper certification can result in sanctions. Fed.R.Civ.P. 26(g). This will be particularly important if Illinois adopts e-discovery rules in the future that are similar to the federal rules. See the discussion in §10.10 above. Fractional disclosure is not the disclosure contemplated by the discovery rules. Ostendorf v. International Harvester Co., 89 Ill.2d 273, 433 N.E.2d 253, 257, 60 Ill.Dec. 456 (1982); Delvecchio v. General Motors Corp., 255 Ill.App.3d 189, 625 N.E.2d 1022, 1029, 192 Ill.Dec. 867 (5th Dist. 1993); Boettcher v. Fournie Farms, Inc., 243 Ill.App.3d 940, 612 N.E.2d 969, 974, 184 Ill.Dec. 93 (5th Dist. 1993); Colls v. City of Chicago, 212 Ill.App.3d 904, 571 N.E.2d 951, 983, 156 Ill.Dec. 971 (1st Dist. 1991). Withholding documents or giving false or incomplete answers can be grounds for sanctions. If unresponsive or incomplete answers are not willful, however, and are the result of a party’s misunderstanding an interrogatory, this should be taken into account when determining what, if any, sanction should issue. Any sanction imposed must be proportionate to the gravity of the violation. Dalan/Jupiter, supra, 865 N.E.2d at 451; Colls, supra, 571 N.E.2d at 983 – 984; Walton v. Throgmorton, 273 Ill.App.3d 353, 652 N.E.2d 803, 807, 210 Ill.Dec. 1 (5th Dist. 1995); Vaughn v. Northwestern Memorial Hospital, 210 Ill.App.3d 253, 569 N.E.2d 77, 82, 155 Ill.Dec. 77 (1st Dist. 1991); Northern Illinois Gas Co. v. Midwest Mole, Inc., 199 Ill.App.3d 109, 556 N.E.2d 1276, 145 Ill.Dec. 374 (2d Dist. 1990). 3. [10.38] Requests To Produce S.Ct. Rule 219(a) provides that if a party fails to comply with a request for the production of documents, the party serving the request may, on notice, move for an order compelling compliance with the request. The sanctions provided by Rule 219(a) are the same as those provided for a refusal to answer questions on oral examination. The sanctions of S.Ct. Rule 219(c) are also available if there is an unreasonable refusal to comply with a request to produce. Peterson v. Ress Enterprises, Inc., 292 Ill.App.3d 566, 686 N.E.2d 631, 640, 226 Ill.Dec. 848 (1st Dist. 1997); Nehring v. First National Bank in DeKalb, 143 Ill.App.3d 791, 493 N.E.2d 1119, 1124, 98 Ill.Dec. 98 (2d Dist. 1986). See also Lavaja v. Carter, 153 Ill.App.3d 317, 505 N.E.2d 694, 699, 106 Ill.Dec. 147 (2d Dist. 1987), in which a defendant’s dilatory tactics regarding a request to produce demonstrated such deliberate and pronounced disregard for the court that there was no abuse of discretion in striking the defendant’s pleadings and entering a default judgment. In another case, a plaintiff was granted a new trial after the defendant was found to have abused the discovery process by not complying “in a meaningful sense” with an agreed discovery order to produce certain documents contemplated by the order. Delvecchio v. General Motors Corp., 255 Ill.App.3d 189, 625 N.E.2d 1022, 1031 – 1032, 192 Ill.Dec. 867 (5th Dist. 1993).



However, in Miller v. Gupta, 275 Ill.App.3d 539, 656 N.E.2d 461, 212 Ill.Dec. 138 (5th Dist. 1995), aff’d in part, rev’d in part, remanded, 174 Ill.2d 120 (1996), it was determined that the trial court did not err in refusing to impose sanctions under S.Ct. Rule 219(c) for a physician’s destruction of evidence since the plaintiff did not make any request for the destroyed X-rays. If, for example, a party fails to produce income tax returns or execute an appropriate authorization in response to a proper production request, the fact that the records were not in the party’s actual physical control is not a defense since the party has a statutory right to inspect and reproduce copies of its own tax records. Under those circumstances, prohibiting any evidence of lost income would be an appropriate sanction. Hawkins v. Wiggins, 92 Ill.App.3d 278, 415 N.E.2d 1179, 1182, 47 Ill.Dec. 866 (1st Dist. 1980). See also Pickering v. Owens-Corning Fiberglas Corp., 265 Ill.App.3d 806, 638 N.E.2d 1127, 203 Ill.Dec. 1 (5th Dist. 1994). Generally, however, there is no obligation to furnish documents not within one’s possession. Workmann v. Illinois State Board of Education, 229 Ill.App.3d 459, 593 N.E.2d 141, 144, 170 Ill.Dec. 599 (2d Dist. 1992); Mykytiuk v. Stamm, 196 Ill.App.3d 928, 554 N.E.2d 505, 509, 143 Ill.Dec. 570 (1st Dist. 1990); Davis v. Kurtz, 165 Ill.App.3d 417, 518 N.E.2d 1297, 1302, 116 Ill.Dec. 317 (3d Dist. 1988).

PRACTICE POINTER

If a receiving party objects to a production request, the requesting party must move for an order compelling production. Otherwise, the objecting party is under no obligation to comply with the request to the extent of its objection. See S.Ct. Rule 214.

Finally, when responding to a request for production on behalf of a corporate litigant, an attorney or agent must search the corporate memory by investigating the records available and attempting to ascertain the knowledge of other corporate agents. Chicago Park District v. Chicago & North Western Transportation Co., 240 Ill.App.3d 839, 607 N.E.2d 1300, 1317, 180 Ill.Dec. 787 (1st Dist. 1992). Also, it should be noted that under the federal rules, the attorney for a party is required to sign every request and response for electronic discovery, certifying that the attorney, after reasonable inquiry, has determined that the discovery disclosure is correct and complete. Improper certification can result in sanctions. Fed.R.Civ.P. 26(g). This will be particularly important if Illinois adopts e-discovery rules in the future that are similar to the federal rules. See the discussion in §10.10 above. See also §10.37 above for similar rules when answering interrogatories on behalf of a corporate litigant. 4. [10.39] Motions for Physical Examination If a court has ordered a physical examination pursuant to the procedures discussed in §10.11 above and the plaintiff does not appear, the defendant may move for sanctions pursuant to S.Ct. Rule 219(c). In drafting its motion, the defendant should document the previous order, the arrangements that were made with the examining doctor, the confirmation of the date and time with the plaintiff’s attorney, and the costs incurred (e.g., fees of the doctor and defense attorney) as a result of the failure to keep the appointment. If a plaintiff absolutely refuses to follow the



court’s order and be examined, the appropriate sanction may be dismissal of the case. In re Conservatorship of Estate of Stevenson, 44 Ill.2d 525, 256 N.E.2d 766, 769, cert. denied, 91 S.Ct. 50 (1970). If a plaintiff has been examined pursuant to a S.Ct. Rule 215 order, Rule 215(c) provides that the licensed professional shall prepare and deliver the original report to the attorney for the party requesting the examination and also provide a duplicate original to the attorney for the party examined. Rule 215(c) provides that the report must be delivered or mailed to both attorneys no later than 21 days after completion of the examination. A trial court may enforce these requirements and impose sanctions if they are not met. The rule states that if the examiner’s report is not timely delivered, “neither the examiner’s report, the examiner’s testimony, the examiner’s findings, X-ray films, nor the results of any tests the examiner has made may be received in evidence except at the instance of the party examined or who produced the person examined.” S.Ct. Rule 215(c). See also Linn v. Damilano, 303 Ill.App.3d 600, 708 N.E.2d 533, 536 – 537, 236 Ill.Dec. 947 (4th Dist. 1999) (portions of physician’s testimony regarding matters not contained in report timely provided to opposing party were barred).

PRACTICE POINTER

The attorney who moves for an examination pursuant to S.Ct. Rule 215 must ensure that the licensed professional retained to perform the examination is aware of the requirements of the rule concerning disclosure of an examiner’s report and the deadline for delivery of the report to both attorneys, and then follow up with the professional’s office to make sure the rule is followed. Alternatively, an extension of time should be secured, ideally by agreement but otherwise by court order.

Most examinations are performed pursuant to informal agreements between attorneys for the parties involved rather than pursuant to S.Ct. Rule 215. An attorney for the party requesting the examination customarily either furnishes the attorney for the examined party a copy of the report upon receipt or agrees to provide a copy of the report within a reasonable time prior to trial if the examining physician is to be called as a witness. A “party calling an examiner to testify at trial shall disclose the examiner as a controlled expert witness in accordance with” S.Ct. Rule 213(f). S.Ct. Rule 215(a). D. Procedures for Obtaining Sanctions 1. [10.40] Prerequisites An attorney who contemplates moving for sanctions must first determine the grounds and authorities for the motion. These will be determined by the type of discovery involved and the noncompliance at issue. Before filing a motion for sanctions, an attorney should carefully consider whether the imposition of sanctions is appropriate in the particular case. The better practice is to differentiate between situations in which there has been technical noncompliance with discovery procedures



and situations in which prejudice to the client is present or is likely to occur. If there has been only technical noncompliance (e.g., opposing counsel is two weeks late in providing answers to interrogatories), an appropriate remedy is to try to informally obtain compliance by personally contacting opposing counsel as required by S.Ct. Rule 201(k) and, if that does not work, to then file a motion to compel the particular discovery. Sanctions are not to be used to solve every discovery problem. That is not to suggest, however, that the attorney should hesitate to move for sanctions when they are warranted and needed to protect the interests of the client. 2. Motion a. [10.41] Moving Party In drafting a motion for sanctions, an attorney must keep in mind that the grounds for the motion and for the relief sought will depend on the particular abuse and factual situation. An attorney seeking sanctions should consider the possibility of alternate relief and must set forth such alternatives in the motion. See, e.g., Frozen Food Express v. Modern Truck Lines, Inc., 79 Ill.App.2d 84, 223 N.E.2d 275, 279 – 280 (5th Dist. 1967), in which, immediately before trial, a party discovered a witness who had not been listed in any answer to interrogatories and simply moved to exclude the witness’ testimony. The reviewing court held that there was no abuse of discretion in denying a motion to strike since the moving party did not make a motion for continuance, request a recess, seek an opportunity to interview the witness, or move for a mistrial. The attorney representing a moving party has a duty to fully inform an opposing side of any severe sanction sought in a motion. Sanchez v. Phillips, 46 Ill.App.3d 430, 361 N.E.2d 36, 39 – 40, 5 Ill.Dec. 36 (1st Dist. 1977). There are general guidelines that should be followed while preparing any motion for sanctions. In addition to the checklist below, see the discussion in §10.13 above. FORM(S) AVAILABLE BY PURCHASING HANDBOOK OR BY SUBSCRIBING TO THE IICLE® ONLINE LIBRARY.



FORM(S) AVAILABLE BY PURCHASING HANDBOOK OR BY SUBSCRIBING TO THE IICLE® ONLINE LIBRARY. COMMENT: If there have been repeated violations of court orders, it should not be necessary to supply all the documentation suggested for compliance with S.Ct. Rule 201(k) since earlier motions resulting in orders will have done so. An attorney moving for sanctions should consider incorporating prior motions and orders by reference or attaching them to the motion. b. [10.42] Opposing Party The burden is on the party opposing a motion for sanctions to establish by affidavit or otherwise that failure to comply with the rules was warranted by extenuating circumstances or events. Ruane v. Amore, 287 Ill.App.3d 465, 677 N.E.2d 1369, 1375, 222 Ill.Dec. 570 (1st Dist. 1997); Farley Metals, Inc. v. Barber Colman Co., 269 Ill.App.3d 104, 645 N.E.2d 964, 968, 206



Ill.Dec. 712 (1st Dist. 1994); Hartnett v. Stack, 241 Ill.App.3d 157, 607 N.E.2d 703, 714, 180 Ill.Dec. 634 (2d Dist. 1993); Martinez v. Pfizer Laboratories Division, 216 Ill.App.3d 360, 576 N.E.2d 311, 320, 159 Ill.Dec. 642 (1st Dist. 1991); Leeson v. State Farm Mutual Automobile Insurance Co., 190 Ill.App.3d 359, 546 N.E.2d 782, 788, 137 Ill.Dec. 837 (1st Dist. 1989). It is incumbent on an offending party to establish both a reasonable excuse for a failure to comply and that prejudice to another party has not resulted from delay. Lee v. City of Decatur, Illinois, 256 Ill.App.3d 192, 627 N.E.2d 1256, 1260, 194 Ill.Dec. 614 (4th Dist. 1994); Harris v. Harris, 196 Ill.App.3d 815, 555 N.E.2d 10, 16, 144 Ill.Dec. 113 (1st Dist. 1990); Perimeter Exhibits, Ltd. v. Glenbard Molded Binder, Inc., 122 Ill.App.3d 504, 461 N.E.2d 44, 51 – 52, 77 Ill.Dec. 657 (2d Dist. 1984). When the record reveals that an opposing party made a good-faith effort to comply with discovery, it may be found that the imposition of sanctions is an abuse of discretion. 10-Dix Building Corp. v. McDannel, 134 Ill.App.3d 664, 480 N.E.2d 1212, 1220, 89 Ill.Dec. 469 (1st Dist. 1985). While an affidavit or verified response will differ with each case, there are certain general guidelines to be followed. In addition to the checklist below, see §10.14 above. FORM(S) AVAILABLE BY PURCHASING HANDBOOK OR BY SUBSCRIBING TO THE IICLE® ONLINE LIBRARY.



FORM(S) AVAILABLE BY PURCHASING HANDBOOK OR BY SUBSCRIBING TO THE IICLE® ONLINE LIBRARY. COMMENT: Although priority of discovery has been eliminated (see S.Ct. Rule 201(e)), most courts are hesitant to impose sanctions if discovery is owed by a moving party, presumably on the theory of: “Let one who is without sin cast the first stone.” If some or all of the delay in complying is the fault of an attorney, it is very important that all reasons for delay be set forth in detail. For example, an attorney who has been engaged in a lengthy trial should set forth the name of the case and pertinent details, such as the identity of the



trial judge, the dates of the trial, and the nature and (extensive) amount of trial preparation; if engaged in writing an appellate brief, the attorney should set forth the name of the case, the date filed, and the time spent researching and writing the brief. It is not sufficient for an attorney simply to refer “to ‘the press of other matters’ as an excuse for” noncompliance with discovery. See, e.g., Ambassador Insurance Co. v. Wilson, 65 Ill.App.3d 418, 382 N.E.2d 605, 608, 22 Ill.Dec. 285 (1st Dist. 1978) (holding that “the press of other matters” are words incapable of precise definition since all attorneys suffer from that malady and that those words by themselves offer no justification for noncompliance); Elders v. Sears Roebuck & Co., 82 Ill.App.3d 995, 403 N.E.2d 631, 38 Ill.Dec. 400 (1st Dist. 1980) (rejecting claim that additional time was needed to complete interrogatories when interrogatories were four and one-half months late); Cruz v. Columbus-Cuneo-Cabrini Medical Center, 264 Ill.App.3d 633, 636 N.E.2d 908, 201 Ill.Dec. 476 (1st Dist. 1994) (finding that plaintiffs’ only excuse for noncompliance with discovery — that they intended to reveal their experts after defendants were deposed — was insufficient to avoid dismissal with prejudice). 3. [10.43] Order If the attorney for an opposing party does not appear at the hearing on a motion for sanctions at which the court enters an order imposing drastic sanctions, such as dismissal or default, the attorney for the moving party should inform the opposition of the order and its content. Cooper v. United Development Co., 122 Ill.App.3d 850, 462 N.E.2d 629, 634, 78 Ill.Dec. 510 (1st Dist. 1984); Sanchez v. Phillips, 46 Ill.App.3d 430, 361 N.E.2d 36, 39, 5 Ill.Dec. 36 (1st Dist. 1977). After the entry of an order of default, a copy of the order must be sent to opposing counsel, and verified proof of service should be filed. 735 ILCS 5/2-1302. An order of dismissal pursuant to S.Ct. Rule 219(c) is not a dismissal for want of prosecution (Keilholz v. Chicago & North Western Ry., 59 Ill.2d 34, 319 N.E.2d 46, 47 – 48 (1974); Farrar v. Jacobazzi, 245 Ill.App.3d 26, 614 N.E.2d 259, 185 Ill.Dec. 125 (1st Dist. 1993)) but is instead an involuntary dismissal that operates as an adjudication on the merits under S.Ct. Rule 273. Towns v. Yellow Cab Co., 73 Ill.2d 113, 382 N.E.2d 1217, 1222, 22 Ill.Dec. 519 (1978). In other words, when dismissal sanctions are imposed under Rule 219(c), the offending party will not have the option of commencing a new action within one year (see 735 ILCS 5/13-217) but rather will have to pursue remedies according to whether the order is interlocutory or appealable. Sander v. Dow Chemical Co., 166 Ill.2d 48, 651 N.E.2d 1071, 209 Ill.Dec. 623 (1995). An order imposing sanctions, like any other discovery order, is ordinarily an interlocutory, nonappealable order unless it disposes of an entire action against all parties. Norskog v. Pfiel, 197 Ill.2d 60, 755 N.E.2d 1, 8, 257 Ill.Dec. 899 (2001); People ex rel. Scott v. Silverstein, 87 Ill.2d 167, 429 N.E.2d 483, 485 – 486, 57 Ill.Dec. 585 (1981); Lewis v. Family Planning Management, Inc., 306 Ill.App.3d 918, 715 N.E.2d 743, 240 Ill.Dec. 56 (1st Dist. 1999); Dolan v. O’Callaghan, 2012 IL App (1st) 111505, ¶¶35 – 40, 979 N.E.2d 383, 365 Ill.Dec. 779; S.Ct. Rule 304. In contrast, an individual may appeal contempt sanctions imposed for violating, or threatening to violate, a pretrial discovery order, thus making the discovery order subject to review. Norskog, supra. If an action is settled, an order imposing sanctions for obstructing discovery becomes final and appealable at the time the dismissal order is entered since that is the only opportunity for



appellate review of the order. Blott v. Hanson, 283 Ill.App.3d 656, 670 N.E.2d 345, 218 Ill.Dec. 848 (2d Dist. 1996); Krasnow v. Bender, 78 Ill.2d 42, 397 N.E.2d 1381, 1383, 34 Ill.Dec. 315 (1979). A trial court can modify or vacate interlocutory orders, including discovery orders, under certain circumstances. Balciunas v. Duff, 94 Ill.2d 176, 446 N.E.2d 242, 246 – 247, 68 Ill.Dec. 508 (1983) (modifying prior interlocutory discovery order is appropriate only if there is change of circumstances or additional facts that warrant such action and there is no evidence of “judge shopping” or other bad faith, such as harassment); Marcy v. Markiewicz, 233 Ill.App.3d 801, 599 N.E.2d 1051, 175 Ill.Dec. 37 (1st Dist. 1992). E. [10.44] Sanctions Under Supreme Court Rule 137 S.Ct. Rule 137 authorizes sanctions for the filing of frivolous or unfounded pleadings, motions, and other papers. Much of the language of Rule 137 is patterned after former §2-611 of the Code of Civil Procedure (repealed Aug. 10, 1990, and preempted by Rule 137). These provisions are modeled after Fed.R.Civ.P. 11. S.Ct. Rule 137 requires an attorney to sign each pleading, motion, or other paper, certifying that the attorney has read the pleading, motion, or other paper. Further, by signing, the attorney certifies that, after due inquiry, the attorney believes it is well grounded in fact and is warranted by law or a good-faith argument for modification or extension of the law and that the pleading, motion, or other paper is not interposed for an improper purpose, such as to harass, delay, or increase the cost of litigation. See generally People v. Chambers, 2013 IL App (1st) 100575, ¶30. When a pleading, motion, or other paper is signed in violation of S.Ct. Rule 137, a court may impose sanctions against the person signing, a represented party, or both, including an order to pay the other party reasonable expenses, including attorneys’ fees. See Mohica v. Cvejin, 2013 IL App (1st) 111695, ¶51, 990 N.E.2d 720, 371 Ill.Dec. 532. It is not completely clear whether courts will impose S.Ct. Rule 137 sanctions against a party for violation of discovery orders in light of other specific sanctions for discovery violations discussed in §§10.22 – 10.43 above. In fact, one court recognized that Rule 137 does not authorize a trial court to impose sanctions for all acts of misconduct but only for the filing of pleadings, motions, or other papers in violation of the rule. The court went even further in saying: “as a general sanction provision, Rule 137 is not properly used to sanction conduct such as discovery violations where other more specific sanction rules apply.” In re Marriage of Adler, 271 Ill.App.3d 469, 648 N.E.2d 953, 957, 208 Ill.Dec. 31 (1st Dist. 1995), citing Diamond Mortgage Corporation of Illinois v. Armstrong, 176 Ill.App.3d 64, 530 N.E.2d 1041, 1045, 125 Ill.Dec. 632 (1st Dist. 1988). Since the Adler court reversed the entry of Rule 137 sanctions on other grounds, however, that language concerning discovery violations must be considered dicta. Similarly, in Badea v. Phillips, 389 Ill.App.3d 292, 906 N.E.2d 615, 329 Ill.Dec. 417 (1st Dist. 2009), the court recognized that S.Ct. Rule 137 sanctions are not appropriate for violations of certain discovery orders. In Badea, a nonparty treating physician was granted a protective order, barring defense counsel from asking certain questions at the physician’s deposition. When



this order was allegedly violated, the physician sought sanctions pursuant to Rule 137. The court recognized that, pursuant to Rule 137, sanctions may be imposed when a pleading, motion, or other paper is signed in violation of the rule. In finding that sanctions pursuant to Rule 137 would be improper, the court stated that the physician made “no attempt to reconcile the nature of his discovery sanction motion with the nature of a sanction motion for improper filings under the express terms of Rule 137.” 906 N.E.2d at 618. However, in William J. Templeman Co. v. W.E. O’Neil Construction Co., 298 Ill.App.3d 1167, 738 N.E.2d 236, 250 Ill.Dec. 272 (1st Dist. 1998), the court rejected a party’s argument that it should not be sanctioned pursuant to S.Ct. Rule 137 for filing inadequate answers in response to requests to admit, which may be considered quasi-discovery. For a discussion of quasi-discovery and requests to admit, see Chapter 9 of this handbook. The court specifically rejected the party’s reliance on Adler, supra, for the proposition that the unsatisfactory answers constituted a discovery violation that should be sanctioned under S.Ct. Rules 216 and 219. Instead, the court emphasized that Rule 137 applies to every pleading, motion, or other paper of a party. Based on these decisions, it appears that a court may be authorized to impose sanctions pursuant to S.Ct. Rule 137 if the discovery violation involves any paper authored by a party. Absent unusual circumstances, however, when discovery violations occur, it is probable that most courts will continue to use the specific sanctions imposed in the discovery rules (S.Ct. Rules 201 – 219) rather than the general sanctions imposed by Rule 137. “ ‘[I]t is well settled that the correctness of a discovery order may be tested through contempt proceedings.’ Norskog v. Pfiel, 197 Ill.2d 60, 69, 257 Ill.Dec. 899, 755 N.E.2d 1, 8 (2001). In such cases, our review of the contempt finding necessarily encompasses a review of the propriety of the underlying order upon which the contempt finding is based.” Illinois Emcasco Insurance Co. v. Nationwide Mutual Insurance Co., 393 Ill.App.3d 782, 913 N.E.2d 1102, 1105, 332 Ill.Dec. 812 (1st Dist. 2009). IV. [10.45] CONCLUSION Most Illinois trial judges are very willing to provide remedies for noncompliance with discovery. Judges are given broad discretion in making protective orders and in supervising the discovery process, consistent with the substantive rights of parties. The Supreme Court has provided the trial judge with considerable flexibility to enforce the various methods of discovery and expects the court to exercise supervisory powers to ensure the expeditious disposition of lawsuits. Although broad powers to impose sanctions have been conferred on trial judges, reviewing courts have, for the most part, looked with disfavor on the imposition of harsh sanctions, such as default or dismissal. Historically, trial courts have been encouraged to order sanctions that would ensure trial on the merits, even in cases involving clear abuses of discovery. Although there have been exceptions, most reviewing courts have reversed severe sanctions imposed for mere technical violations, while at the same time affirming drastic sanctions when there has been deliberate disregard of court authority and/or substantial prejudice. Sanctions must be proportionate to the gravity of a violation.



An attorney must zealously represent the client. If faced with noncompliance, the attorney should use all remedies to compel the discovery that is needed to prepare the lawsuit. The attorney should seek to impose sanctions not for mere technical violations but when the substantive rights of the client are, or may be, prejudiced. The attorney, as well as the trial judge, must remember that sanctions are to be imposed to promote justice and not to penalize. On the other hand, it must be recognized that there are recalcitrant attorneys and parties who consistently and deliberately frustrate the discovery process. If discovery is to become a cooperative undertaking by counsel and the parties conducted largely without court intervention, as the Illinois Supreme Court has said that it should be, then it will be necessary for trial judges to impose appropriate sanctions when there are serious violations of discovery rules and orders. Illinois Supreme Court Rules continue to encourage trial judges to more readily impose sanctions, particularly when there have been repeated instances of discovery abuse. The Supreme Court has provided a broad range of discovery sanctions in S.Ct. Rule 219. Decisions from the reviewing courts suggest that trial judges should use these tools when there is a need to balance the interests of all parties and to enforce discovery rules. When there is a deliberate disregard of judicial authority, trial judges are encouraged to impose sanctions that are consistent with the gravity of the offense. At the same time, as the amendments to S.Ct. Rules 213 and 219 reflect, when deciding which sanctions are appropriate, trial judges are encouraged to allow for a trial to be decided on the merits. V. APPENDIX A. [10.46] Motion for Protective Order FORM(S) AVAILABLE BY PURCHASING HANDBOOK OR BY SUBSCRIBING TO THE IICLE® ONLINE LIBRARY.



FORM(S) AVAILABLE BY PURCHASING HANDBOOK OR BY SUBSCRIBING TO THE IICLE® ONLINE LIBRARY. B. [10.47] Motion To Compel Party To Appear for Deposition FORM(S) AVAILABLE BY PURCHASING HANDBOOK OR BY SUBSCRIBING TO THE IICLE® ONLINE LIBRARY.



FORM(S) AVAILABLE BY PURCHASING HANDBOOK OR BY SUBSCRIBING TO THE IICLE® ONLINE LIBRARY. COMMENT: In the factual situation described in these examples, specific sanctions (e.g., the amount of expenses incurred, including attorneys’ fees) might also be requested. If the case is close to trial and prejudice to the client is being occasioned by the delays, the moving party may also pray for severe sanctions, such as dismissal or default, and should request a continuance of the trial in the alternative.



C. [10.48] Petition for Rule To Show Cause — Nonparty — Failure To Appear for Deposition

FORM(S) AVAILABLE BY PURCHASING HANDBOOK OR BY SUBSCRIBING TO THE IICLE® ONLINE LIBRARY. D. [10.49] Rule To Show Cause — Nonparty — Compel Appearance for Deposition FORM(S) AVAILABLE BY PURCHASING HANDBOOK OR BY SUBSCRIBING TO THE IICLE® ONLINE LIBRARY. COMMENT: S.Ct. Rule 201(k) applies only to parties, so it is not necessary to satisfy the requirement of personal consultation and reasonable attempts to agree. Nevertheless, an attempt should be made to accommodate the schedules of witnesses whenever possible.



E. [10.50] Motion To Compel Deponent To Answer Deposition Questions FORM(S) AVAILABLE BY PURCHASING HANDBOOK OR BY SUBSCRIBING TO THE IICLE® ONLINE LIBRARY.



F. [10.51] Motion To Compel Production of Certain Documents at Time of Oral Examination

FORM(S) AVAILABLE BY PURCHASING HANDBOOK OR BY SUBSCRIBING TO THE IICLE® ONLINE LIBRARY.