MOUNT VERNON – Fifth District appellate judges who could
have sanctioned a lawyer in a discovery dispute scolded many lawyers and judges
In a May 16 decision, they warned both sides in civil
litigation to stop objecting to discovery requests on grounds they don’t intend
“In our view, an attorney abuses the discovery process when
he or she asserts a litany of grounds for objection to discovery without any
intention or ability to defend those grounds,” wrote Presiding Justice Judy
“The apparent willingness of opposing counsel and trial
courts to accept this tactical approach as ‘status quo’ fuels an already strong
temptation to make stock, frivolous objections to discovery requests.
“This interferes with the efficient and expeditious
administration of the pending case, and negatively impacts the other cases on
the court’s docket.
“When a trial court is presented with a motion to rule on
objections or discovery matters, the court must promptly rule on those matters.
“The failure to issue a ruling, and where appropriate, to
impose sanctions, constitutes an abuse of the court’s discretion, and an
abdication of its authority and responsibility.”
Justices Thomas Welch and Richard Goldenhersh concurred.
The case that triggered the lecture started in St. Clair
County, in 2010, when Valentine and Christina Zagorski sued Allstate Insurance.
The Zagorskis claimed Allstate improperly denied coverage
for a fire at their home in Fairview Heights.
The couple denied Allstate’s assertion that they started the
They served interrogatories asking:
• If any Illinois court in the prior five years assessed
fees, costs, penalties or fines against Allstate;
• If any insured sued Allstate in Illinois in five years
alleging it failed to pay a fire loss claim;
• For any policy manual in effect at the time of the fire for
handling fire loss claims; and
• For any claims at the state insurance department in five
years alleging improper practices in fire loss claims.
The Zagorskis didn’t get answers but they didn’t complain
until 2012, when they moved to compel a deposition of Allstate attorney Robert
Brady, from Brown and James.
Their attorney, John Leskera of Collinsville, also asked then
circuit judge Lloyd Cueto to inspect Allstate’s claims log in his chambers.
Brady opposed the deposition and invoked privilege over all
entries in the log after the date the Zagorskis filed suit.
Cueto ruled they couldn’t depose him but they could direct
interrogatories to him. He then granted privilege to entries in the claims log
after the filing of the suit.
Leskera served interrogatories on Brady about his
involvement in Allstate claims, his firm’s involvement, and Allstate cases he
tried to verdict.
Allstate objected, asserting privilege.
On Sept. 5, 2012, Cueto held a hearing on the new
interrogatories about Brady and the four original ones about Allstate.
Cueto sustained some objections and overruled others.
Then he retired, and the case passed to Circuit Judge Andrew
Allstate moved for reconsideration of Cueto’s order, and
Gleeson denied it at a hearing on Feb. 20, 2013.
He gave Allstate 30 days to comply.
Four months later, Allstate and Brady moved for a friendly
contempt order against themselves “for purposes of facilitating appellate
They couldn’t appeal a discovery order because it wouldn’t
count as a final order, but they could appeal a contempt order as final.
At a hearing on June 25, 2013, Gleeson asked Brady what was
so unique about the order that would subject it to interlocutory review.
According to Cates, “Brady replied that he had never before
been ordered to produce attorney client privilege information in a first party
Gleeson held Brady in civil contempt on Jan. 3, 2014, fined
him $25 a day, and stayed the sanction pending appeal.
Cueto’s order mystified Cates, who found “inconsistencies
and ambiguities which make the rulings unclear.”
“There is no transcript of proceedings in the record, and so
we are left to sort out the rulings with little information about the trial
court’s true intention,” she wrote.
Cates also found no rationale for the word “or” appearing between
two valid subjects of discovery, implying that the Zagorskis had to choose
She wrote that Cueto recrafted the four original
interrogatories without addressing subparts of two.
She wrote that Allstate objected to interrogatories as
overly broad, burdensome, irrelevant, work product, and subject to attorney
“There is nothing in the record indicating that Allstate
attempted to defend on any of these grounds, other than relevance,” she wrote.
Cates directed Gleeson to order an answer, and there the
“Our discovery rules provide procedural tools to educate the
parties in advance of trial about the merits of their claims and defenses and
to promote the prompt and just disposition of litigation,” Cates wrote.
“When an objection to a discovery request is based on
relevance, the party seeking the discovery has the obligation to establish how
the discovery requested is relevant.
“When an objection is based on attorney client privilege or
work product privilege, the objecting party has the burden to specifically
identify the privilege, and must submit a privilege log describing the nature
of the documents, communications, or things not produced, and the exact
privilege being claimed.
“When the objection is based on the grounds that the
interrogatory is overly broad, burdensome, or harassing, once again, it is the
objecting party that has the obligation to offer an adequate defense to the
“In the face of discovery abuses, it is incumbent upon the
opposing party to promptly request relief, and it is incumbent upon the trial
court to consider the request, and, where indicated, to issue orders that will
discourage further abuse.”
The Justices vacated Brady’s $25 daily fine, which would
have topped $30,000.
They ruled that his conduct was not contumacious, meaning he
didn’t stubbornly resist authority.