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Appeal of pretrial discovery orders in Illinois.

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The litigation has been hard fought, the discovery has been extensive, and the stakes are high. After extensive briefing, the trial court has ordered your client to produce documents that you have substantial grounds for refusing to produce, either because they contain privileged or otherwise confidential information or simply because the discovery requested is so wide-ranging and intrusive that it would be inordinately time-consuming and expensive to comply.

You have already explained to your client that appellate courts usually defer to trial court rulings on discovery. (1) But your client is convinced that if an appeals court could review the trial court's order it would come to a different conclusion. Unfortunately, the litigation in the trial court could continue for years.

You have also explained that pretrial discovery orders are considered "nonfinal" and "interlocutory" and therefore not appealable as a matter of right. But waiting until final judgment would mean disclosing the information, at which point the damage would be done. Short of defaulting in the litigation or risking sanctions for noncompliance, is there anything else you can do?

A pretrial discovery order--wrongly issued, you think--threatens to undermine your case by making you disclose confidential information. What can you do to get a second opinion at this early stage in the litigation? More than you might think, as this article explains.

The answer in some cases is "yes." Illinois law offers several avenues for appealing discovery orders prior to judgment. And if you're willing to risk a contempt citation, you have a recognized avenue for immediate appellate review.

This article examines both the general rule prohibiting interlocutory review of pretrial discovery orders and exceptions that provide relief in exceptional cases. (2) It also suggests several tactics that improve your odds of obtaining interlocutory review.

The "final judgment" rule

The Illinois Constitution provides that appeals as a matter of right may be taken to the Illinois Appellate Court from final judgments of the circuit courts. (3) The state constitution, therefore, essentially embodies the final judgment rule that applies by statute in the federal courts. (4)

In other words, appeals from orders that are not final can only be taken as allowed by Illinois Supreme Court Rules. (5) "Except as specifically provided by those rules, the appellate court is without jurisdiction to review judgments, orders, or decrees which are not final." (6)

Because discovery orders are not final, they usually are not immediately appealable. (7) The Illinois courts are reluctant to create judicial exceptions to the final judgment rule. For example, the collateral order doctrine fashioned by the federal courts has not been recognized in Illinois. (8)

Thus, most discovery orders are reviewable on appeal only after the entry of final judgment on the merits. (9) Although the constitution permits the Illinois Supreme Court to authorize additional avenues of appeal, no general rule authorizes interlocutory appeal of discovery orders. Moreover, the Illinois Supreme Court has stated that "pretrial discovery orders are not made appealable by Rules 306, 307, or 308." (10)

This statement is overly broad, however. In some cases there are pathways --few and narrow though they be--to appellate review of pretrial discovery orders. (11)

Exceptions to the final judgment rule

Appeal of certified questions under Supreme Court Rule 308. Supreme Court Rule 308 permits appeals from interlocutory orders presenting legal questions whose resolution may materially aid the ultimate termination of the litigation. Rule 308 offers an opportunity to review discovery orders that raise underlying legal issues. (12)

Scott v Silverstein states that "[d]iscovery orders are not made appealable" under Rules 306, 307, and 308 of the Supreme Court Rules. (13) But, as Silverstein itself acknowledges, "[t]here has been no argument made that Supreme Court Rules 306, 307, or 308 apply in this case." (14) In fact, the supreme court later accepted an appeal from a discovery order that presented underlying legal issues for determination. (15)

Thus, there is a distinction "between questions of law regarding the scope of discovery and questions regarding particular discovery. Questions of law are reviewable under Rule 308, whereas discovery orders are not." (16)

"Rule 308(a) may provide a means to appeal a discovery order where both the circuit court and appellate court agree that 'the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,'" the first district wrote in Lewis v Family Planning Management, Inc. (17) And, as the supreme court recently observed, although ordinarily the appeals court limits its review under Rule 308 to the certified question, once the question is answered the court may consider the underlying order "in the interests of judicial economy and the need to reach an equitable result." (18)

An appeal under Rule 308 requires both certification of the legal issue by the trial court and permission to appeal by the appellate court. Note that the appellate court's authority to review later in the lawsuit is unaffected if a party requests an order under Rule 308 but the trail court declines to certify. (19)

Mandamus or supervisory orders by the supreme court under Supreme Court Rules 381 and 383. The Illinois Constitution confers original jurisdiction for mandamus actions on the Illinois Supreme Court. (20) The Illinois Appellate Court may exercise only such original jurisdiction as is "necessary to a complete determination of any case on review." (21) Requests to upset pretrial discovery orders by mandamus, therefore, must be directed to the Illinois Supreme Court. (22)

The Illinois Supreme Court has granted mandamus to quash a discovery order, although the court cautioned against using the writ to regulate discovery in ordinary cases. In General Motors Corp v Bua, the court noted that ordinarily original mandamus or prohibition is an inappropriate remedy to regulate discovery in the trial court. (23) The court wrote that it was chary of exercising original jurisdiction even in cases involving void orders unless they raised issues of broad and compelling importance.

Citing cases in which power of a trial court to compel certain types of discovery was tested in mandamus proceedings, the court issued the writ, with the warning that "we wish to give no encouragement to the litigant who would have us review normal pretrial discovery procedure by original Mandamus." (24) Since the Bua decision, the supreme court has usually declined to issue the writ of mandamus but has occasionally granted essentially the same relief in exercising its supervisory power over lower courts. (25) Thus, in an extraordinary case, you might get relief from a trial court's discovery by petitioning the Illinois Supreme Court for a writ of mandamus with an alternative request for a supervisory order. (26) Although the writ will probably be denied, the supreme court might exercise its supervisory authority to direct the trial court to vacate, modify, or reconsider the discovery order.

Disobedience and contempt under Supreme Court Rule 304(b)(5). In Silverstein, the supreme court also recognized a party's right to immediately appeal a judgment of contempt to challenge a discovery order:

[A]n order cast in terms of a contempt proceeding imposing sanctions is a final and appealable order and has been held to be an appropriate method for testing pretrial discovery orders [cites omitted]. The imposition of a sanction for contempt is final and appealable because, although occurring within the context of another proceeding and thus having the appearance of being interlocutory, it is an original special proceeding, collateral to and independent of, the case in which the contempt arises. (27) Supreme Court Rule 304(b)(5) codifies Silverstein and makes an "order finding a person or entity in contempt of court which imposes a monetary or other penalty" appealable without any special finding by the trial court. As is stated in Norskog v Pfiel, "it is well settled that the correctness of a discovery order may be tested through contempt proceedings. When an individual appeals contempt sanctions imposed for violating, or threatening to violate, a pretrial discovery order, the discovery order is subject to review. Review of the contempt finding necessarily requires review of the order upon which it is based." (28)

In Lewis v Family Planning Management, Inc, the court wrote, "This practice was codified in December 1993 when Supreme Court Rule 304(b) was amended to expressly provide for appeals of contempt orders....Rule 304(b)(5) requires that there be '[a]n order finding a person or entity in contempt [of court] which imposes a monetary or other penalty.'" (29)

Although Illinois courts distinguish between civil and criminal contempt, the distinction makes no difference to the appealability of discovery orders under Supreme Court Rule 304(b)(5). The contempt order must be "final" in the sense that the court makes a contempt finding and imposes a sanction. (30) The record should make clear that contempt was adjudged and the trial court was not

merely entering discovery sanctions under Rule 219, because sanctions orders are not appealable until the conclusion of the case. (31)

The trial court may find the parties, their attorneys, or both in contempt. Make sure that the person found in contempt is the person who prosecutes the appeal. Otherwise, it may be dismissed for lack of standing. (32)

Refusal to produce documents based on a claim of common law or statutory privilege often leads to contempt rulings and subsequent appeals, (33) but privilege is by no means the only reviewable issue. In one case, for example, a defendant who was ordered to disclose its assets and net worth successfully challenged the order on appeal. The fourth district held, "[t]o require the pretrial disclosure of a defendant's assets, even as an aid to settlement, would be a serious invasion of privacy." (34) Illinois rulings offer an escape hatch for a party who in good faith suffers a contempt sanction to take an immediate appeal, even if the appeals court affirms the underlying discovery order. In many cases, appellate courts have upheld the trial court's discovery order but nevertheless vacated the contempt order, reasoning that the attorney or litigant was not contemptuous of the trial court's authority but was merely seeking review of a questionable trial court order.

In Sterling Finance Management, LP v UBS PaineWebber, Inc, for example, the first district noted that where the contempt order was entered at the litigant's request to test a discovery order on appeal, there was no contempt even though the discovery order was ultimately affirmed. (35) In another case, the court explained as follows:
   It is appropriate for a party to request that a contempt order be
   entered against it so that party may seek immediate appeal of a
   trial court's discovery order.... In such situations, where the
   party sought the order in good faith and was not contemptuous of
   the trial court's authority, we may vacate the contempt order even
   when we find that the trial court's discovery order was proper.
   (36)


Tactics for obtaining appellate review

The following steps can improve your chances of getting the appellate court to hear your challenge to an order compelling discovery.

* Do what you can to make sure the trial court rules definitively and that

there is no prospect of reconsideration, revision, or subsequent modification of its order. That might require a motion to reconsider or similar motion on your part at trial to make the record clear.

* Try to present the issue on the record as simply and directly as possible. An appeal framing the issue as whether the trial court misapplied the elements of the attorney-client privilege is more likely to win review than one claiming that the trial abused its discretion in overruling privilege claims after an in camera examination of voluminous documents withheld under claims of privilege.

* Demonstrate the potentially widespread importance of the issue or highlight the complex nature of the underlying litigation. Thus, in Bua the court granted mandamus to address issues about the scope of the pretrial discovery rules that were "of great importance to the administration of justice." (37)

* Identify one or more pure legal issues--preferably of first impression--presented by the trial court's order. For example, in Schlagenhauf v Holder, the U.S. Supreme Court was persuaded to review on mandamus of a case presenting issues of first impression about the requirements for ordering mental or physical examination of a party. (38)

* Show that important rights will be lost if appeal is deferred. In particular, claims of attorney client privilege or work product could be effectively destroyed if interlocutory review were unavailable. Theoretically, after final judgment an appeals court could order a new trial if privileged material had been wrongly admitted. "At that point, however, the cat is already out of the bag." (39)

* Consider pursuing multiple avenues of appeal, including in extraordinary cases relief by mandamus or supervisory order in the supreme court. Bua once again provides an example where a petition of a writ of mandamus was joined with a direct appeal from an order adjudging a party to be in contempt. (40)

* Explain to the appeals court how and why it can take the appeal without opening the floodgates to a wave of similar interlocutory appeals in other cases.

Conclusion

The final judgment rule prohibits the interlocutory appeal of most discovery orders. But if you have the right case, avenues for appealing discovery orders are open to you. By carefully framing the issues before the trial court, you can improve your shot at interlocutory review of discovery orders.

(1.) See, for example, Reda v Advocate Health Care, 199 Ill 2d 47, 54, 765 NE2d 1002, 1007 (2002) ("Generally, a trial court's rulings on discovery matters will not be disturbed on appeal absent a manifest abuse of discretion. However, the applicability of a statutory evidentiary privilege, and any exceptions thereto, are matters of law subject to de novo review."); Norskog v Pfiel, 197 Ill 2d 60, 70-71, 755 NE2d 1, 9 (2001) ("Although a trial court's discovery order is ordinarily reviewed for a manifest abuse of discretion, the proper standard of review depends on the question that was answered in the trial court. If the facts are uncontroverted and the issue is the trial court's application of the law to the facts, a court of review may determine the correctness of the ruling independently of the trial court's judgment." (cites omitted)).

(2.) Discovery orders in ancillary proceedings brought to obtain discovery, usually from third parties, are be yond the scope of this article. See, for example, Eskandani v Phillips, 61 Ill 2d 183, 334 NE2d 146 (1975) (discovery order issued in aid of out-of-state proceeding pursuant to Supreme Court Rule 204(b) is final and appealable).

(3.) Ill Const Art VI, [section] 6. Illinois Supreme Court Rule 301 codifies the constitutional rule in civil cases.

(4.) 28 USC [section] 1291.

(5.) Ill Const Art VI, [section] 6.

(6.) Almgren v Rush-Presbyterian-St Luke's Medical Center, 162 Ill 2d 205, 210, 642 NE2d 1264, 1266 (1994) .

(7.) Norskog at 69, 755 NE2d at 8.

(8.) See In re Estate of French, 166 Ill 2d 95, 104, 651 NE2d 1125, 1130 (1995); Pizzato's Inc v City of Berwyn, 168 Ill App 3d 796, 798, 523 NE2d 51, 53 (1st D 1988); Chicago Title & Trust Co v Guaranty Bank & Trust Co, 59 Ill App 3d 362, 375 NE2d 522 (1st D 1978).

(9.) See, for example, Reda at 54, 765 NE2d at 1006.

(10.) Almgren at 211, 642 NE2d at 1267.

(11.) Two avenues for appeal prior to final judgment that are unavailable for discovery orders are Supreme Court Rules 304(a) and 307. Supreme Court Rule 304(a) permits appeals of final orders in multiple-claim or multiple-party litigation. However, "discovery orders are not ... directly appealable under Rule 304 since they are interlocutory in nature." Lewis v Family Planning Management, Inc, 306 Ill App 3d 918, 921, 715 NE2d 743, 746 (1st D 1999). Supreme Court Rule 307 permits appeal from orders granting or denying motions for certain injunctions. But Illinois courts are loath to characterize discovery orders as injunctions under Rule 307.
   Although such orders may have the qualities of an
   injunction in the sense that they compel the parties
   to do or not to do a particular thing, they are considered
   noninjunctive "because they [do] not form
   part of the power traditionally reserved to courts
   of equity, but, instead, [are] part of the inherent
   power possessed by any court to compel witnesses
   to appear before it and give testimony." Such orders
   are subject to review, but they are not immediately
   appealable because they are reviewable on appeal
   from the final judgment.


Almgren at 211, 642 NE2d at 1267, quoting In re A Minor (1989), 127 Ill 2d 247, 262, 537 NE2d 292, 298 (1989). See also Short Bros Const, Inc v Korte & Luitjohan Contractors, Inc, 356 Ill App 3d 958, 960, 828 NE2d 754, 755-56 (5th D 2005) (subpoenas and discovery orders are considered administrative in nature and not appealable as injunctions).

(12.) Rule 308 requires that the trial court enter a finding in writing identifying the question of law involved. Unlike its federal counterpart, Rule 308 does not require that the question be "controlling." "Such a statement may be made at the time of the entry of the order or thereafter.... " Ill S Ct Rule 308(a). The aggrieved party must then file an application for leave to appeal with the appellate court within 14 days after the entry of the court's order or finding, whichever is later. Id at 308(b).

(13.) Silverstein, 87 Ill 2d 167, 171, 429 NE2d 483, 485 (1981).

(14.) Id.

(15.) Bright v Dicke, 166 Ill 2d 204, 652 NE2d 275 (1995) (appeal under Rule 308 allowed on the question of whether a trial court has discretion to permit the late service of a response to a request to admit).

(16.) Szczeblewski v Gossett, 342 Ill App 3d 344, 346, 795 NE2d 368, 369 (5th D 2003).

(17.) Lewis, 306 Ill App 3d 918, 921-22, 715 NE2d 743, 746 (1st D 1999), quoting 155 Ill 2d R 308(a). See, for example, International Truck and Engine Corp v Caterpillar, Inc, 351 Ill App 3d 576, 814 NE2d 182 (2d D 2004) (question about the scope of permissible discovery--confidential documents of a nonparty competitor--certified under Rule 308); Bass v Cincinnati, Inc, 180 Ill App 3d 1076, 1078-79, 536 NE2d 831, 832 (1st D 1989) (questions about the scope of discovery in a products liability case are reviewable under Rule 308).

(18.) De Bouse v Bayer AG, 235 Ill 2d 544, 550, 922 NE2d 309, 313 (2009).

(19.) Norskog at 70, 755 NE2d at 9.

(20.) Ill Const Art VI, [section] 4(a).

(21.) Id [section] 6.

(22.) Ill [section] Ct R 381.

(23.) Bua, 37 Ill 2d 180, 191-92, 226 NE2d 6, 13 (1967).

(24.) Id at 193, 226 NE2d at 14. See also Owen v Mann, 105 Ill 2d 525, 530-31, 475 NE2d 886, 890 (1985) (granting mandamus to quash a discovery order for information that was protected by a confidentiality shield: "Ordinarily, mandamus will not lie to correct an abuse of discretion, and it is not normally used to regulate discovery in the trial court.")

(25.) Ill S Ct R 383; see Balciunas v Duff, 94 Ill 2d 176, 188-89, 446 NE2d 242, 247-48 (1983) ("The writ of mandamus is an extraordinary remedy which should not, under normal circumstances, be sued to regulate discovery.... We therefore exercise our supervisory power and direct that [the trial judge] vacate the March 12 order and proceed accordingly."); Marshall v Elward, 78 Ill 2d 366, 375, 399 NE2d 1329, 1333 (1980) ("The writs of mandamus and prohibition are extraordinary remedies and, under normal circumstances, are not the proper vehicles for the regulation of discovery.... [I]t is fitting, in this instance, to exercise our supervisory power.")

(26.) See Birkett v Bakalis, 196 Ill 2d 510, 513, 752 NE2d 1107, 1109 (2001) ("supervisory orders are disfavored. As a general rule, we will not issue a supervisory order unless the normal appellate process will not afford adequate relief and the dispute involves a matter important to the administration of justice.")

(27.) Silverstein at 171-72, 429 NE2d at 486.

(28.) Norskog at 69, 755 NE2d at 8 (cites omitted). See also Reda at 54, 765 NE2d at 1007 ("the contempt finding is final and appealable and presents to the reviewing court the propriety of that discovery order."); Wisniewski v Kownacki, 221 Ill 2d 453, 458, 851 NE2d 1243, 1246 (2006).

(29.) Lewis at 922-23, 715 NE2d at 746-47, quoting SCR 304(b)(5) (emphasis in the original).

(30.) See Silverstein at 173, 429 NE2d at 486 (order directing respondent to provide discovery "is an interlocutory one, made as a preliminary order in a pending suit."); In re Marriage of Gutman, 232 Ill 2d 145, 152-53, 902 NE2d 631, 635-36 (2008).

(31.) In re Marriage of Young, 244 Ill App 3d 313, 316, 614 NE2d 423, 426 (1st D 1993) ("an order merely assessing fines and costs for discovery violations, unless imposed pursuant to a contempt of court determination, is not final and appealable.")

(32.) See Almgren at 215-17, 642 NE2d at 1269 (appeal of party who had not been found in contempt dismissed where the party's attorney who had been held in contempt failed to appeal contempt order).

(33.) See, for example, Reda at 54, 765 NE2d at 1007 (statutory privilege); Berry v West Suburban Hospital Medical Center, 338 Ill App 3d 49, 788 NE2d 75 (1st D 2003) (claim that documents protected by peer review privilege).

(34.) Manns v Briell, 349 Ill App 3d 358, 365, 811 NE2d 349, 355 (4th D 2004).

(35.) Sterling, 336 Ill App 3d 442, 356, 782 NE2d 895, 906 (1st D 2002).

(36.) Webb v Mt Sinai Hosp & Medical Center of Chicago, Inc, 347 Ill App 3d 817, 828, 807 NE2d 1026, 1036, (1st D 2004). See also Cangelosi v Capasso, 366 Ill App 3d 225, 230, 851 NE2d 954, 959 (2d D 2006); First United Bank v Hofmann, 227 Ill App 3d 1036, 1039, 591 NE2d 915, 917 (3d D 1992); Profesco Corp v Dehm, 196 Ill App 3d 127, 131, 553 NE2d 101, 104 (4th D 1990).

(37.) Bua at 192, 226 NE2d at 13.

(38.) 379 US 104 (1964).

(39.) In re Ford Motor Co, 110 F3d 954, 963 (3d Cir 1997) (applying federal collateral order doctrine).

(40.) Bua at 183-84, 226 NE2d at 9.

Charles D. Knight practices in Chicago where he concentrates in complex litigation and appellate practice.
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Author:Knight, Charles D.
Publication:Illinois Bar Journal
Date:Dec 1, 2010
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