This month's FlashPoints examine how Illinois appellate courts have addressed discovery sanctions issued pursuant to Rule 219(c) over the last year.
Overview of Rule 219(c)
Pursuant to Supreme Court Rule 219(c), Illinois trial judges have the authority to enter a wide range of sanctions when a party unreasonably fails to comply with discovery rules and orders. It is important to understand that the purpose for imposing sanctions is to coerce compliance with discovery rules and orders, not punish dilatory conduct. Sander v. Dow Chemical Co., 166 Ill.2d 48, 651 N.E.2d 1071, 209 Ill.Dec. 623 (1995). It is widely recognized that the factors a court must consider in determining whether a particular sanction is appropriate are (1) surprise to the adverse party; (2) prejudicial effect of preferred evidence; (3) nature of evidence; (4) the diligence of the adverse party in seeking discovery; (5) timeliness of the adverse party™s objection to evidence; and (6) the good faith of the party offering the evidence. Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 692 N.E.2d 286, 229 Ill.Dec. 513 (1998). The following opinions demonstrate how this analysis has been applied over the last year.
1. Failure to Supplement Disclosure of the Basis of an Expert's Opinion At issue in this case was the plaintiff's obligation under rule 213(g)(ii) to disclose the basis of any opinions offered by its witnesses. One of the plaintiff's opinion witnesses reviewed 13 discovery depositions prior to trial. Nine of the depositions were not reviewed until after the witness's discovery deposition was taken. The plaintiff did not supplement its 213(g) discovery answers to disclose the supplemental review and, therefore, the additional basis for the witness's opinion. The opinions of the witness did not change. The trial judge barred the witness from testifying at trial, which effectively ended the plaintiff's case. The appellate court reversed, finding that it was an abuse of discretion to strike the witnesses entire testimony when her actual opinions had not been changed and several less sever sanctions were available which were more appropriate given the circumstances. Coleman v. Abella, 322 Ill.App.3d 792, 752 N.E.2d 1150, 256 Ill.Dec. 908 (1st Dist. 2001).
2. Failure to Timely Answer Written Interrogatories Defendant was served two sets of written interrogatories. Defendant answered the first set, but failed to answer a supplemental set prior to the plaintiff obtaining two orders compelling the answers. When the defendant failed to comply with the second order compelling discovery, the court sanctioned defendant by barring her from presenting any evidence or testimony at trial. Six days before the court entered sanctions and ten months before trial, defendant provided answers to the second set of interrogatories. The trial court denied a motion to reconsider the sanctions, as plaintiff diligently prosecuted the lawsuit and defendant failed to offer any excuses for the non-compliance with discovery. Regardless, the appellate court found the sanction an abuse of discretion in that less severe sanctions were available, such as attorneys™ fees and costs. Perry v. Minor, 319 Ill.App.3d 703, 745 N.E.2d 113, 253 Ill.Dec. 339 (1st Dist. 2001).
3. Sanction of Default by Trial Court Requires Notice and Explanation in Order Defendant failed to answer written discovery in violation of an order to compel, and was ordered to pay attorneys' fees in the amount of $300 as a sanction. The next time the parties were before the court, on defendant's motion for summary judgment, the court was made aware that defendant had still failed to comply with the order requiring discovery answers. Without prior notice, the court entered an order of default judgment against defendants as a discovery sanction for not complying with the prior order. The appellate court reversed, based upon the lack of notice for the motion and a lack of some basis explained in the order justifying the drastic sanction. If a party is to be sanctioned with default, the order must include the specific acts that rise to the level of a deliberate and contumacious disregard of the court™s discovery order sufficient to warrant dismissal. Buffington v. Yungen, 322 Ill.App.3d 152, 748 N.E.2d 844, 255 Ill.Dec. 140 (2d Dist. 2001).
4. Medical Bills Produced By Plaintiff On The Eve Of Trial Were Barred Bills for continuing medical treatment of plaintiff were not produced to defendant until a few days before the trial. The trial court found that plaintiff failed to seasonably supplement discovery and, pursuant to rule 219(c), barred plaintiff from using them at trial. The plaintiff argued that there was no surprise. The appellate court, affirming the trial court's order, found the trial court was in a better position to determine whether plaintiff's noncompliance was justifiable. Wiker v. Pieprzyca-Berkes, 314 Ill.App.3d 421, 732 N.E.2d 92, 247 Ill.Dec. 376 (1st Dist. 2000).
5. Discovery Sanctions Re-Imposed After Voluntary Dismissal Sub-part (e) of Supreme Court Rule 219 discourages the abuse of voluntary dismissals by attaching adverse consequences when a plaintiff re-files an action. (Pursuant to rule, the court must consider prior litigation in determining what discovery will be allowed in a re-filed action.) The trial court reimposed two separate orders that sanctioned plaintiff in the original action. The appellate court found there was no abuse of discretion in barring plaintiff from putting on evidence of lost time, income, or profits based upon prior non-compliance with an order compelling an answer to an interrogatory requesting such information. The original court also sanctioned plaintiff by barring the production of any witnesses at trial, which was also reimposed. The appellate court found the order prohibiting evidence regarding certain damages was warranted, while the order barring plaintiff from calling any witnesses was an abuse of discretion. The sanctions were found to be an abuse of discretion, in part, because defendant could not be surprised by plaintiff™s own testimony despite a failure to answer interrogatories. Smith v. P.A.C.E. Suburban Bus Division, 323 Ill.App.3d 1067, 753 N.E.2d 353, 257 Ill.Dec. 158 (1st Dist. 2001).
6. Rule 219 Does Not Allow Courts To Prevent Voluntary Dismissals The trial court denied plaintiff's motion to voluntarily dismiss, pursuant to 735 ILCS 5/2-1009, based upon plaintiff's failure to timely comply with discovery deadlines. The trial court had apparently determined that plaintiffs were attempting to utilize section 2-1009 as a means to evade court-imposed discovery sanctions. The Supreme Court held that Rule 219(e) does not obstruct a plaintiff™s right to voluntarily dismiss its claims. Instead, Rule 219(e) provides a remedy for discovery violations to be addressed in the newly filed action. Morrison v. Wagner, 191 Ill.2d 162, 729 N.E.2d 486, 246 Ill.Dec. 113 (2000).
7. Rule 219(c) Does Not Allow Sanctions for Violations of Orders In Limine The trial court declared a mistrial after the plaintiff's attorney repeatedly violated an order in limine at trial. The trial court sanctioned plaintiff's attorney by ordering her to pay defendant™s attorneys fees and costs. The Appellate Court ruled that Rule 219(c) did not allow an assessment of attorney expenses for violations of motions in limine absent a finding of contempt. Juarez v. Commonwealth Medical Associates, 318 Ill.App.3d 380, 742 N.E.2d 386, 252 Ill.Dec. 136 (1st Dist. 2000).
