Salvator v. Air & Liquid Systems Corp. , 92 N.E.3d 529 ( 2017 )

FILED
December 5, 2017
Carla Bender
2017 IL App (4th) 170173 th
4 District Appellate
Court, IL
NO. 4-17-0173
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
LARRY SALVATOR, SR., and MARCIA SALVATOR, ) Appeal from
Plaintiffs, ) Circuit Court of
v. ) McLean County
AIR & LIQUID SYSTEMS CORPORATION, Successor ) No. 16L20
to Buffalo Pumps Inc.; AURORA PUMP COMPANY; )
BRAND INSULATIONS, INC.; BORG WARNER )
MORSE TEC, INC., as Successor by Merger to Borg )
Warner Corp.; BRIDGESTONE AMERICAS, INC.; )
BURNHAM, LLC; BW/IP, INC.; BRYANT HEATING )
& COOLING SYSTEMS; CARRIER CORPORATION; )
CHICAGO GASKET COMPANY; CLEAVER­ )
BROOKS, a Division of Aqua-Chem, Inc.; CRANE )
COMPANY; DAP, INC.; DURO DYNE )
CORPORATION; FLOWSERVE CORPORATION, f/k/a )
Duriron Company, Inc., and as Successor to Byron )
Jackson Pump Division, Durco, And BW/IP International, )
Inc.; FMC CORPORATION, Successor of Peerless )
Pumps; GENERAL GASKET CORPORATION; )
GEORGIA-PACIFIC LLC; GOULDS PUMPS (IPG), )
INC.; HONEYWELL INTERNATIONAL, INC.; )
INGERSOLL-RAND COMPANY; ITT )
CORPORATION; JOHN CRANE, INC.; JP BUSHNELL )
PACKING SUPPLY CO.; McMASTER-CARR SUPPLY )
CO.; METROPOLITAN LIFE INSURANCE )
COMPANY; OWENS-ILLINOIS, INC.; PNEUMO )
ABEX LLC; SCHNEIDER ELECTRIC USA INC., f/k/a )
Square D; SEARS, ROEBUCK & COMPANY; )
SPRINKMANN SONS CORPORATION; STERLING )
FLUID SYSTEMS (USA) LLC; SUPERIOR BOILER )
WORKS, INC.; TACO, INC.; TENNECO )
AUTOMOTIVE OPERATING COMPANY; TRANE )
U.S. INC.; UNION CARBIDE CORPORATION; )
VIKING PUMP, INC.; WARREN PUMPS LLC; WEIL­ )
MCLAIN COMPANY; WESTERN AUTO SUPPLY )
COMPANY; YORK INTERNATIONAL )
CORPORATION; and ZURN INDUSTRIES LLC, )
Defendants )
)
(Cleaver-Brooks, Inc., a Division of Aqua-Chem, Inc., ) Honorable
Defendant-Appellant). ) Rebecca S. Foley,
) Judge Presiding
JUSTICE KNECHT delivered the judgment of the court, with opinion.
Justices Steigmann and Appleton concurred in the judgment and opinion.
OPINION
¶1 Defendant, Cleaver-Brooks, Inc., a division of Aqua-Chem, Inc. (Cleaver-
Brooks), appeals from the trial court’s order finding it in “friendly contempt” and assessing a $1
fine for failing to comply with an order requiring it to produce copies of certain documents to
plaintiffs, Larry Salvator, Sr., now deceased, and his wife, Marcia Salvator, in discovery.
Cleaver-Brooks requests we reverse and vacate the discovery and contempt orders because
(1) the court abused its discretion in ordering it to produce copies of the requested documents
and (2) its refusal to comply with the discovery order was not contemptuous. We affirm the
discovery order, vacate the contempt order, and remand for further proceedings.
¶2 I. BACKGROUND
¶3 A. Complaint
¶4 In February 2016, plaintiffs filed a complaint against Cleaver-Brooks and 42 other
defendants, alleging, in part, Larry Salvator, Sr., sustained injuries caused by the inhalation of
asbestos fibers during his work in close proximity to “asbestos[-]containing boilers, and
associated gaskets and insulation” manufactured by Cleaver-Brooks in the 1960s and 1970s.
Plaintiffs alleged theories of negligence based on Cleaver-Brooks’s failure to (1) warn the
exposure to asbestos caused serious disease, pulmonary fibrosis, malignancies, and death and
-2­
(2) provide instruction as to safe methods, if any existed, of handling and processing asbestos-
containing products. Larry Salvator, Sr., ultimately identified 11 jobsites where he worked with
equipment manufactured by Cleaver-Brooks. Due to the nature of Larry Salvator, Sr.’s injuries,
plaintiffs sought and received an expedited discovery and trial schedule.
¶5 B. Plaintiffs’ Second Request for Production of Discovery
¶6 In November 2016, plaintiffs served Cleaver-Brooks with a second request for
production of documents. In part, plaintiffs requested Cleaver-Brooks to produce “[t]he index
cards referenced by [Cleaver-Brooks’s corporate representative] at his depositions that he says he
uses to perform searches for boilers at job sites [sic].”
¶7 C. Cleaver-Brooks’s Responses and Objections to
Plaintiffs’ Second Discovery Request
¶8 In December 2016, Cleaver-Brooks filed responses and objections to plaintiffs’
second request for production of documents. Cleaver-Brooks raised the following general
objection:
“Cleaver-Brooks objects to any [r]equest that relates to periods of
time, geographical areas, or activities outside the scope of the
allegations of the operative complaint as over broad [sic],
irrelevant, unduly burdensome, and not reasonably calculated to
lead to the discovery of admissible evidence. Any [r]equest that is
not limited in time and scope to the particular facts of the case, by
definition, calls for irrelevant information and is not reasonably
calculated to lead to the discovery of admissible evidence. It would
also impose an unreasonable burden on Cleaver-Brooks to search
-3­
out, review, organize and produce information and documents not
related to any issue in the case. Further, requiring Cleaver-Brooks
to produce information without limitation to the particular facts of
the case improperly shifts [p]laintiff[s’] burden of proof to
Cleaver-Brooks.”
It also raised the following specific objection to plaintiffs’ request for production of its index
cards:
“Cleaver-Brooks objects that this [r]equest is overly broad
in time and scope, *** and unduly burdensome and oppressive.
Cleaver-Brooks further objects because this [r]equest does not
specify with reasonable particularity the documents sought and
seeks information that is neither relevant nor reasonably calculated
to lead to the discovery of admissible evidence in above referenced
matter. Subject to the foregoing and without waiver, Cleaver-
Brooks states that there are over 90,000 index cards and they are
too voluminous to produce. Cleaver-Brooks has agreed to make the
index cards available for [p]laintiff[s’] inspection in an orderly
fashion at a mutually agreeable date and time.”
The parties thereafter agreed plaintiffs would inspect the 90,000 index cards on January 10,
2017.
¶9 D. Inspection Agreement
¶ 10 On January 4, 2017, Cleaver-Brooks sent plaintiffs a proposed inspection
-4­
agreement for plaintiffs’ review and execution. Cleaver-Brooks alleged its index cards were a
confidential customer list “not available to the public or to persons or entities other than the
producing party and its affiliates, the disclosure of which would result in an identifiable, clearly
defined and serious injury to [its] competitive and financial position.” It requested plaintiffs to
agree to the following inspection protocol:
“(a) The index cards shall not be taken out of order or removed
from the drawer(s); (b) Plaintiff[s] shall not take notes or pictures
of the index cards; (c) The use of cell phones shall not be permitted
by [p]laintiff[s] in the inspection room; (d) Plaintiff[s] may
designate individual index cards for copying by Cleaver-Brooks, at
[p]laintiffs’ expense, by way of a tab on the index card. Plaintiff
may designate for copying cards that relate to sites that may be at
issue in pending or future claims brought against Cleaver-Brooks
by [the law firm representing plaintiffs]. Should there be any
disputes over relevance, those disputes shall be addressed in a[n
[Illinois Supreme Court Rule] 201(k) [(eff. July 1, 2014)]
conference prior to production; (e) Copies shall be made by
Cleaver-Brooks at a rate of $0.10 per page, which amount shall be
paid by [p]laintiff[s].”
Cleaver-Brooks also requested plaintiffs to agree to the following confidentiality terms:
“The production of the relevant index cards will not be disclosed to
anyone other than attorneys and other law firm personnel from the
-5­
firm Wylder, Corwin, Kelly working on cases filed by the Wylder,
Corwin, Kelly law firm (including, without limitation, paralegals
and support staff) against Cleaver-Brooks, the plaintiffs, and any
consultants and experts retained by the parties for the purposes of
either assisting counsel or testifying in Wylder, Corwin, Kelly
asbestos law suits against Cleaver-Brooks. The confidential
documents and information contained therein will not be disclosed
to other third persons.”
¶ 11 Plaintiffs refused to agree to the terms outlined in Cleaver-Brooks’s inspection
agreement.
¶ 12 E. Cleaver-Brooks’s Motion for a Protective Order
¶ 13 On January 9, 2017, Cleaver-Brooks filed a motion for a protective order, which it
amended on January 10, 2017. In its amended motion, Cleaver-Brooks initially noted it had
previously “objected to the production of all 90,000 index cards as overly broad in time and
scope, unduly burdensome and oppressive, not specified with reasonable particularity, seeking
information that is neither relevant nor reasonably calculated to lead to the discovery of
admissible evidence, and too voluminous to produce, but agreed to make them available for
[p]laintiffs’ inspection at a mutually agreeable date and time.” Cleaver-Brooks argued the index
cards “contain[ed] proprietary and trade secret information[,] including the names of [its]
customers,” and the “[i]nspection and production of the confidential information *** prior to a
protective order limiting the use of said information would put [it] at a significant competitive
disadvantage by allowing competitors and other similarly situation the opportunity to access
-6­
confidential customer information.” Cleaver-Brooks requested the trial court to enter a protective
order limiting the disclosure and use of any index cards it produces. Cleaver-Brooks also
requested, in the interest of judicial economy and in an effort to streamline discovery and reduce
costs, the court order the inspection be a one-time inspection and apply “to all pending and future
claims” brought against it by the law firm representing plaintiffs.
¶ 14 Attached to Cleaver-Brooks’s motion was a proposed protective order, which
indicated, in part, (1) “Cleaver-Brooks shall make available for inspection by [p]laintiffs ***
over approximately 90,000 index cards” and (2) “[f]urnishing the index cards for inspection to
the [p]laintiffs shall not constitute a waiver of any objections by Cleaver-Brooks as to the
relevance of any individual index card[, and] [s]hould there be any disputes over relevance, those
disputes shall be addressed in a *** Rule 201(k) conference prior to production by Cleaver-
Brooks.”
¶ 15 F. Hearing on Cleaver-Brooks’s Motion for a Protective Order
¶ 16 On January 12, 2017, the trial court held a hearing on Cleaver-Brooks’s motion
for a protective order. Initially, in reviewing the events that led to its motion, Cleaver-Brooks
noted it previously indicated it would make the index cards available for inspection, “subject to
the objections” made in its response to plaintiffs’ second request for production of documents.
Cleaver-Brooks argued, because plaintiffs refused to agree to its inspection agreement, a
protective order was necessary prior to the “production of [the] index cards” to protect their
proprietary and confidential information from being disseminated to third parties, thereby
causing it both business- and litigation-related economic and competitive harm. Cleaver-Brooks
further argued, because the production of the index cards caused it to incur substantial costs and
-7­
affected ongoing business, a one-time inspection should be ordered.
¶ 17 Following Cleaver-Brooks’s argument, the trial court inquired as follows:
“My assumption, based on what I’ve read, is that Wylder, Corwin,
Kelly will not receive a copy of all 90,000 [index cards]; is that
true? They’re going to go through and be marking those that they
deem relevant and then those will be copied?”
To which Cleaver-Brooks responded, “Correct, your honor.”
¶ 18 Plaintiffs argued, in part, Cleaver-Brooks’s motion was “untimely,” as the
contents of the index cards had yet to be seen and its assertions were unverified. As an example,
plaintiffs stated:
“In the past, what has happened in cases I’ve been involved
with document inspections is, we’ve gone to look at the
documents. We’ve marked the documents that we wanted. And
then defense counsel would say, [‘o]kay, you’ve marked, you
know, 100 pages or 200 pages or whatever.[’] And then they
would have their counsel look at those and say whether or not they
thought any of the things marked should be protected.
And in the interim, we don’t even have a document to
disseminate. We’ve seen them at that point. We could argue to the
[c]ourt and the [c]ourt could have a copy of those documents to
look at to say, [‘][y]es, I agree with counsel. This is what’s
represented in these documents[’] or, [‘]no, it’s not.[’] Then the
-8­
plaintiff could argue as to why the material contained in them
should not be privileged or protected or whatever or a trade secret,
I guess, is what they’re arguing in this case.”
Plaintiffs further assured the court they would not disseminate the customer lists to aid Cleaver­
Brooks’s business competitors and objected to a one-time inspection.
¶ 19 The trial court denied Cleaver-Brooks’s motion for a protective order, finding
(1) Cleaver-Brooks failed to meet its burden to establish the records were trade secrets, and
(2) Cleaver-Brooks’s request for a one-time inspection was “premature,” as it was uncertain
whether the production of the index cards would become a routine discovery request. The court
noted it would entertain a new motion for a protective order after plaintiffs’ “inspection” if a
dispute arose as to the confidentiality of the documents reviewed. The court further noted, “[t]o
the extent that you need some guidelines or are seeking a ruling with respect to the parameters of
the inspection, *** [plaintiffs will] need to tab and identify those [index] cards they wish to have
reproduced.” The trial court also indicated it would give Cleaver-Brooks leave to file a written
motion for an Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) finding. No such motion
was filed.
¶ 20 G. Inspection
¶ 21 On January 18 and 19, 2017, Cleaver-Brooks allowed plaintiffs to inspect its
90,000 index cards at its facilities. Plaintiffs tabbed 5077 index cards to be copied and turned
over.
¶ 22 H. Cleaver-Brooks’s Motion for a Continuance
¶ 23 On January 24, 2017, Cleaver-Brooks filed a motion to continue the February 6,
-9­
2017, trial setting. In its motion, Cleaver-Brooks noted, in part, it needed to review the 7000 to
9000 index cards plaintiffs tabbed during their inspection for relevance.
¶ 24 I. Plaintiffs’ Motion To Compel
¶ 25 On January 26, 2017, plaintiffs filed a motion to compel Cleaver-Brooks “to
produce” copies of the 5077 index cards they had previously tabbed. Plaintiffs noted they did not
understand Cleaver-Brooks’s reference in its motion to continue to its need to review the index
cards for relevance as “[t]he test for production of material in discovery is not that it be deemed
‘relevant’ by defense counsel after being produced for inspection.” Rather, plaintiffs asserted
“[i]f the cards were not discoverable, then they would not have been produced in the first place.”
¶ 26 J. January 27, 2017, Hearing
¶ 27 On January 27, 2017, the trial court held a hearing to address various discovery
issues and multiple defendants’ motions to continue the February 6, 2017, trial date. In
addressing a motion to continue, plaintiffs noted, in part:
“[W]e know [the tabbed index cards are] relevant to Cleaver­
Brooks[’s] business in Illinois. We tabbed everything that was sold
in Illinois. The hope of that would be that in this case it may be
that it’s relevant as far as what we tabbed, for example, in one of
the drawers I was on had, quote, accessories. It had de-aerators.
They were having to sell those over and over again. When we do
the corporate rep we’re going to have some questions on that in
terms of is there asbestos in there, are they used only on Cleaver-
Brooks boilers and so on. In addition, we don’t get paid by the
- 10 ­
hour. That’s not a jab, it’s just we don’t. So it will allow us in some
of these other cases in [Cleaver-Brooks] to serve the cards on them
and say, you know, admit it, these are your 90,000 cards that you
maintained, which is what they wanted initially in terms of, you
know, there may be—someone walks in, has got Indiana exposure
too we might have to look at the cards. But for Illinois that’s part
of why we did that. So when they say it’s not relevant, I don’t
know how, it’s discoverable, how it isn’t—well, that’s what your
motion says. You have to determine relevance, that’s your written
motion. So all of the cards are relevant. It shows their business
activities.”
In response, Cleaver-Brooks noted:
“I’m not saying the [tabbed index cards] might not be relevant. I’m
not saying that all the points that [plaintiffs] just made aren’t
potentially valid questions to ask my corporate rep next Friday.
What I’m saying is we need more time to get 100 percent of the
records.”
After considering the various discovery issues and noting the unavailability of trial counsel and
other issues contributing, the court granted the various motions to continue the trial setting and
set the matter for trial on April 7, 2017. After continuing the trial date, plaintiffs agreed to
postpone argument on their motion to compel until the next hearing.
¶ 28 K. Cleaver-Brooks’s Response to Plaintiffs’ Motion To Compel
and Motion for Protective Order
- 11 ­
¶ 29 On February 8, 2017, Cleaver-Brooks filed a response to plaintiffs’ motion to
compel and a motion for a protective order. Cleaver-Brooks asserted, after reviewing the 5077
tabbed index cards, it determined only 13 index cards related to boilers or equipment located at
the 11 jobsites Larry Salvator, Sr., identified. It agreed to produce the 13 index cards but
objected to the production of the remaining cards as they were “completely irrelevant to the
matters in this case.” Specifically, Cleaver-Brooks asserted no evidence existed to suggest Larry
Salvator, Sr., “worked at the jobsites listed on the 5064 remaining index cards or was present
during the time periods tabbed equipment was shipped.” Cleaver-Brooks argued plaintiffs
“essentially tabbed any card they could locate that referenced Illinois.” It further alleged some of
the 5064 tabbed index cards related to out-of-state jobsites. Cleaver-Brooks characterized
plaintiffs’ actions as a “fishing expedition” to assist them in future cases. Cleaver-Brooks argued,
as analogous to In re All Asbestos Litigation, 385 Ill. App. 3d 386, 895 N.E.2d 1155 (2008), the
trial court should deny plaintiffs’ motion to compel, as it was overbroad and the requested index
cards were not relevant to the identified jobsites. Alternatively, if the court ordered it to produce
all 5077 index cards, Cleaver-Brooks requested the court to enter a protective order limiting the
disclosure and use of any index card. Cleaver-Brooks also requested, if the court granted
plaintiffs’ motion to compel, either (1) the order be final for purposes of appeal under Rule
304(a) (eff. Mar. 8, 2016), or (2) a finding of “friendly contempt” be entered against it.
¶ 30 L. February 9, 2017, Hearing
¶ 31 On February 9, 2017, the trial court held a hearing on plaintiffs’ motion to
compel. Plaintiffs initially asserted the index cards had already been “produced,” and they were
simply waiting for copies of the index cards. Plaintiffs characterized Cleaver-Brooks’s objection
- 12 ­
as the refusal “to produce the records that [they have] already produced.” Plaintiffs maintained
Cleaver-Brooks’s refusal to produce copies of the tabbed index cards was in bad faith to delay
trial until Larry Salvator, Sr., died. Plaintiffs argued the tabbed index cards were relevant in
several ways, such as the scope of Cleaver-Brooks’s sales and product line, their corporate
representative’s familiarity with Cleaver-Brooks’s boilers, and to show the types of accessories
found on different types of boilers and the maintenance needs of those parts. Plaintiffs also
argued the index cards could be used to impeach Cleaver-Brooks’s corporate representative
should he attempt to minimize Cleaver-Brooks’s involvement in asbestos-containing boilers.
¶ 32 In response, Cleaver-Brooks indicated it allowed plaintiffs to review the contents
of all 90,000 index cards with the understanding they would be tabbing only those index cards
deemed relevant to their case. As to any question of waiver, Cleaver-Brooks argued:
“To say that an inspection constitutes any sort of a waiver
to relevance, that’s absolutely not possible. Your Honor, it may be
a waiver of privilege, but it’s certainly not a waiver of relevance.”
Cleaver-Brooks indicated it reviewed the 5077 index cards tabbed by plaintiffs and determined
only 13 were relevant to plaintiffs’ case. Cleaver-Brooks asserted plaintiffs went on a “fishing
expedition” and developed a “CB hit list” based on the amount of tabbed index cards. Cleaver-
Brooks argued plaintiffs requested index cards relating to boilers throughout the state of Illinois
as well as other states where Larry Salvator, Sr., had not alleged exposure and for time periods
when Larry Salvator, Sr., had not alleged exposure. As an example, Cleaver-Brooks presented
the trial court with a requested index card for a “package feed system” shipped in 1981 to Cairo,
Illinois—a product, period of exposure, and jobsite Larry Salvator, Sr., had not identified.
- 13 ­
Cleaver-Brooks argued, like All Asbestos Litigation, plaintiffs should only be allowed to have
information pertaining to the identified jobsites and periods of exposure.
¶ 33 In reply, plaintiffs maintained:
“We did only tab what was relevant in [our case]. The problem is
that Cleaver-Brooks, in retrospect, has decided that they have a
different view of relevance than [p]laintiff[s] [have], so they don’t
want to produce the documents that we tabbed.
Under Cleaver-Brooks’ definition of relevance, something is only
discoverable if it is related to a particular job site [sic]. And that’s
different than saying it’s relevant to ‘the case’. The case is more
than just about a particular job site [sic]. *** Using the [example]
that [Cleaver-Brooks’s counsel] made to a [requested index card]
from 1981, if there’s a boiler record from the 1980s and it’s the
same model type as the one, for example, that Mr. Salvator was
exposed to, we could point out to the jury you knew this product
contained asbestos. Yes. You knew by ‘72, at least, that that was
hazardous to human health and you kept selling it. You kept selling
it through the ‘80s. Here’s an index card that says you were still
selling this asbestos containing boiler in 1981. So just right there,
using the example that [Cleaver-Brooks’s counsel] threw up to the
[c]ourt, I can show why that is relevant to ‘the case’. Because
there’s more than just exposure as an element of what [p]laintiff[s]
- 14 ­
[have] [to] prove[ ]. We also have to prove negligence. And we can
do that *** through these documents.”
¶ 34 The trial court granted plaintiffs’ motion to compel, finding the tabbed index
cards were relevant and potentially linked to discoverable information. Specifically, the court
found:
“There are many ways to approach the issue of relevance.
And I don’t think a defendant necessarily gets to decide for a
plaintiff what is relevant. Plaintiff argues here that it’s not just the
job site [sic]. They’re arguing that it’s relevant to the scope of
business and/or sales; perhaps impeachment purposes; the types of
boilers. I have often seen in these types of cases where, through the
corporate rep, [the] [p]laintiff has to establish the state of the art,
what products were sold, what the company’s knowledge was at a
particular point in time, if they continued to sell those products
after particular points in time in establishing negligence or their
attempt to establish negligence.”
The court further found All Asbestos Litigation to be distinguishable, in part, because plaintiffs
requested only those cards they found to be relevant to their case, which amounted to 5077 of the
90,000 index cards.
¶ 35 The trial court anticipated the potential for a friendly contempt order, noting to
plaintiffs’ counsel, “we need to discuss the procedure from here because it may be a situation as
in [Manns v. Briell, 349 Ill. App. 3d 358, 811 N.E.2d 349 (2004),] where they’re going to refuse
- 15 ­
to comply and ask for a, apparently, contempt finding.” Cleaver-Brooks responded first by
asking the court to enter a “confidentiality order” with regard to the disclosure of information “to
other plaintiff’s firms or other people outside of their law firm,” which plaintiffs objected to and
the court denied. Cleaver-Brooks then asked for a Rule 304(a) finding, which plaintiffs also
objected to and the court denied. The court noted if Cleaver-Brooks intended to refuse to comply
with the court’s order, regardless of a proposed deadline to turn over the tabbed index cards, then
it would “forge ahead with a friendly contempt finding” and a monetary fine to give it the
opportunity to appeal. Cleaver-Brooks asked the court to enter a deadline that day so a contempt
order could follow. Plaintiffs’ counsel requested a short period to discuss with his clients and
cocounsel whether they would continue to demand the production of the index cards or forgo the
discovery and proceed to trial because of Larry Salvator, Sr.’s health. In doing so, plaintiffs’
counsel noted: “We have a number of cases involving Cleaver-Brooks, so this issue won’t go
away by any stretch. But we do have a man who is literally on his death bed.” The court set a
February 24, 2017, deadline to produce copies of the tabbed index cards and continued the
hearing.
¶ 36 M. February 24, 2017, Hearing
¶ 37 During a February 24, 2017, hearing, Cleaver-Brooks indicated it was refusing to
produce copies of the remaining tabbed index cards and requested the trial court to enter a
friendly contempt order against it. Plaintiffs again argued Cleaver-Brooks’s refusal to produce
the copies of the remaining index cards was a bad-faith tactic to delay trial. During its argument,
the court interrupted plaintiffs’ counsel, explaining it would enter a contempt order only if
plaintiffs requested such relief and still needed the remaining index cards:
- 16 ­
“I’m going to stop you now because I’m only going to do that if
that’s the plaintiff[s’] request to do it. *** I think it’s up to the
plaintiff[s] to determine what type of relief they wish to seek if
they want to ask for that finding to enforce it. They may not wish
to seek the records at all.”
Cleaver-Brooks suggested issues relating to the index cards were likely to be raised in different
ways throughout the course of litigation. Cleaver-Brooks argued, to protect its due process rights,
the issue had to be immediately appealed or plaintiffs’ motion to compel should be withdrawn.
Cleaver-Brooks assured the court its refusal to comply was in good faith because it believed the
remaining index cards were not relevant. Plaintiffs indicated they were “not requesting any relief
from the court at that time.” Cleaver-Brooks maintained it was within the court’s discretion to
enter an order of friendly contempt without a request from plaintiffs’ counsel. The court
indicated it would not make a ruling that day and continued the matter.
¶ 38 N. February 27, 2017, Hearing
¶ 39 During a February 27, 2017, hearing, Cleaver-Brooks again requested the trial
court enter an order of friendly contempt against it. Cleaver-Brooks maintained it had a good-
faith basis to challenge the discovery order and the issue would likely continue to come up
during litigation. Plaintiffs argued, in part, Cleaver-Brooks should not benefit from its own
refusal to comply with a court order and its request was in bad faith, as it was for the purpose of
delaying trial. Plaintiffs indicated they were going to ask the court “for relief” for Cleaver­
Brooks’s refusal to turn over the discovery but not at that time.
¶ 40 The trial court found Cleaver-Brooks in “friendly contempt” for refusing to
- 17 ­
comply with its discovery order and imposed a $1 fine. The court explained, “when a contemnor
refuses to follow the court’s order and does not hold the court in disdain or subject it to scorn, the
proper procedure to test [its] order on appeal is for the contemnor to request the trial court to
enter a citation of contempt.” The court noted: “I do believe that [Cleaver-Brooks’] request is
being made in good faith. I do not believe it’s being made in an attempt to—for the sole purpose
of delaying the trial, to harass[,] or any of those other reasons.”
¶ 41 O. Plaintiffs’ Motion for Modification or Rehearing of
the Trial Court’s February 27, 2017, Judgment
¶ 42 On February 28, 2017, plaintiffs filed a “motion for modification or rehearing of
the [trial] court’s February 27, 2017, judgment finding Cleaver-Brooks in ‘friendly contempt.’ ”
Cleaver-Brooks later filed a response in opposition.
¶ 43 P. Cleaver-Brooks’s Notice of Appeal and Motion To Stay
¶ 44 On March 1, 2017, having been found to be in “friendly contempt” and assessed a
$1 fine for failing to comply with the trial court’s February 9, 2017, discovery order, Cleaver-
Brooks filed a (1) notice of appeal from the trial court’s friendly contempt “order” under Rule
304(b)(5) (eff. Mar. 8, 2016) (providing “[a]n order finding a person or entity in contempt of
court which imposes a monetary or other penalty [is immediately appealable without a special
finding]”) and (2) motion to stay all proceedings under Rule 305(b) (eff. July 1, 2004) pending
the resolution of its appeal.
¶ 45 Q. March 3, 2017, Hearing
¶ 46 On March 3, 2017, the trial court held a hearing on plaintiffs’ motion for
modification or rehearing of the trial court’s February 27, 2017, judgment and Cleaver-Brooks’s
motion to stay all proceedings. Following argument, the court (1) denied plaintiffs’ motion and
- 18 ­
(2) granted Cleaver-Brooks’s motion. The court stayed all litigation pending the resolution of
this appeal.
¶ 47 R. Larry Salvator, Sr.’s Death and Plaintiffs’ Notice of Appeal
¶ 48 On March 11, 2017, Larry Salvator, Sr., died. On March 31, 2017, plaintiffs filed
a notice of appeal from the trial court’s order granting Cleaver-Brooks’s motion to stay.
¶ 49 S. Plaintiffs’ Appeal
¶ 50 In July 2017, this court affirmed the trial court’s order staying all litigation
pending the resolution of this appeal, finding plaintiffs failed to demonstrate the court’s decision
was an abuse of its discretion. Salvator v. Cleaver-Brooks, Inc., 2017 IL App (4th) 170244-U,
¶ 60.
¶ 51 II. ANALYSIS
¶ 52 In this interlocutory appeal, Cleaver-Brooks requests we reverse and vacate the
February 9, 2017, discovery order and the February 27, 2017, contempt order because (1) the
trial court abused its discretion in ordering it to produce copies of the 5077 tabbed index cards
and (2) its refusal to comply with the discovery order was not contemptuous.
¶ 53 A. Jurisdiction
¶ 54 As an initial matter, plaintiffs suggest this court may not have jurisdiction over the
instant appeal due to the trial court’s characterization of its contempt finding as an “order” rather
than a “judgment.” We addressed and rejected this argument in plaintiffs’ appeal from the trial
court’s order granting Cleaver-Brooks’s motion to stay. See id. ¶ 54. No matter how the trial
court characterized its contempt finding, the substance of the order demonstrated it satisfied the
requirements to be immediately appealable. Id. We have jurisdiction.
- 19 ­
¶ 55 B. February 9, 2017, Discovery Order
¶ 56 Ordinarily, discovery orders are only reviewable on appeal from a final judgment.
Norskog v. Pfiel, 197 Ill. 2d 60, 69, 755 N.E.2d 1, 8 (2001). Where an appeal is taken from a
finding of contempt for failure to comply with a discovery order, our review of the contempt
finding necessarily encompasses a review of the propriety of the underlying discovery order on
which the contempt finding is based. Harris v. One Hope United, Inc., 2015 IL 117200, ¶ 6, 28
N.E.3d 804; Norskog, 197 Ill. 2d at 69, 755 N.E.2d at 8. Accordingly, we shall review the
contentions raised by both Cleaver-Brooks and plaintiffs with respect to the February 9, 2017,
discovery order.
¶ 57 Cleaver-Brooks requests we reverse and vacate the February 9, 2017, discovery
order because the trial court abused its discretion in ordering it to produce copies of the 5077
tabbed index cards. Specifically, Cleaver-Brooks argues the court’s finding was in error because
(1) plaintiffs failed to present any reasonable argument as to why 5064 of the tabbed index cards
were relevant or likely to lead to relevant evidence, (2) plaintiffs’ “true motive” in seeking the
index cards was to conduct an improper “fishing expedition” for the benefit of other plaintiffs
within and outside of Illinois; and (3) our courts prohibit discovery orders based on wide,
sweeping discovery requests.
¶ 58 Plaintiffs disagree, arguing (1) Cleaver-Brooks’s appeal is frivolous and brought
in bad faith, (2) Cleaver-Brooks waived any relevance objection by producing the index cards on
January 18 and 19, 2017, (3) Cleaver-Brooks’s boilerplate objections in its discovery responses
did not preserve any relevance objection, and (4) the trial court properly concluded copies of
5077 of Cleaver-Brooks’s 90,000 index cards were subject to disclosure, as they were relevant
- 20 ­
and not requested as part of a “fishing expedition.”
¶ 59 In its initial brief, Cleaver-Brooks notes “[t]he thrust of plaintiffs’ argument
below was that [it] had already ‘produced’ all of the index cards at issue and only later raised an
improper relevance objection to the majority of the cards when it came time to photocopy and
deliver them.” Cleaver-Brooks asserts—without citing any authority—“[t]his argument is
misleading, and intentionally conflates the inspection of document[s] with their eventual
production after review by defense counsel.” Cleaver-Brooks maintains it “never agreed to
produce, and in fact never produced, any index cards to plaintiffs’ counsel until it reviewed them
for relevance.”
¶ 60 Plaintiffs maintain Cleaver-Brooks waived any relevance objection by producing
the index cards on January 18 and 19, 2017. Specifically, plaintiffs assert Cleaver-Brooks’s
argument to the contrary is “a flimsy appeal to semantics,” which creates “a false distinction
between ‘inspection’ and ‘production.’ ” Plaintiffs highlight Cleaver-Brooks’s failure to cite any
authority holding “a party can voluntarily produce documents in discovery and then later claim
those documents are not discoverable due to relevance.” In fact, plaintiffs note not a single case
cited by Cleaver-Brooks before this court or the trial court follows such an approach.
¶ 61 In its reply brief, Cleaver-Brooks asserts plaintiffs have forfeited their waiver
argument by failing to provide authority in support of their position. Alternatively, Cleaver-
Brooks contends, even if this court elects to address the issue, “there is persuasive contrary
authority establishing that the production of documents for inspection does not waive a relevance
objection to the further copying, production[,] and use of a document so inspected.” In support,
Cleaver-Brooks cites Calvert v. Reinisch, 218 F.R.D. 497 (W.D. Tex. 2003).
- 21 ­
¶ 62 We initially reject Cleaver-Brooks’s argument suggesting plaintiffs have forfeited
their argument by failing to provide authority in support of their position. Throughout the
proceedings below and now on appeal, Cleaver-Brooks has maintained a distinction exists
between the production of documents for inspection and outright production. In doing so,
Cleaver-Brooks provided no authority in support of its position either before the trial court or in
its initial brief on appeal. In responding to Cleaver-Brooks’s unsupported argument, plaintiffs
maintained such a distinction was an appeal to semantics and pointed out no case cited by
Cleaver-Brooks followed such an approach. Under these circumstances, we reject Cleaver­
Brooks’s forfeiture argument.
¶ 63 Again, Cleaver-Brooks asserts “there is persuasive contrary authority establishing
that the production of documents for inspection does not waive a relevance objection to the
further copying, production[,] and use of a document so inspected.” Setting aside the fact this
“persuasive contrary authority” is an order from a federal district court in Texas, we find it far
from “establish[es]” the procedure for which Cleaver-Brooks advocates. Rather, in Calvert the
court held it was “not inclined to agree that the production for inspection of documents, as kept
in the ordinary course of business, is necessarily a waiver of any specific objection to the further
production, copying, and use of a document so inspected, but not within the scope of the original
discovery request.” (Emphases added.) Calvert, 218 F.R.D. at 502. Cleaver-Brooks’s reliance on
Calvert is unpersuasive. Absent any Illinois authority providing for such a distinction in our
discovery rules, we will not entertain such an approach, nor do we understand such an approach.
¶ 64 While it appears Cleaver-Brooks intended to preserve its right to review the
tabbed index cards for relevance, the record shows Cleaver-Brooks failed to do so. Prior to
- 22 ­
production, Cleaver-Brooks did not obtain a ruling from the trial court or enter into an agreement
with plaintiffs whereby it could review the index cards tabbed by plaintiffs for relevance.
Instead, Cleaver-Brooks voluntarily produced the index cards without any reservation. By doing
so, Cleaver-Brooks forfeited its relevance objection. See Gallagher v. Lenart, 226 Ill. 2d 208,
229, 874 N.E.2d 43, 56 (2007) (forfeiture is the failure to make a timely assertion of a known
right whereas waiver is the intentional relinquishment of a known right). On this basis alone, the
trial court’s judgment may be sustained. See Elston v. Oglesby, 2014 IL App (4th) 130732, ¶ 12,
21 N.E.3d 57 (“[T]his court may affirm the trial court’s judgment on any basis that is supported
by the record.” (Internal quotation marks omitted.)).
¶ 65 Forfeiture aside, Cleaver-Brooks has failed to show the trial court abused its
discretion in ordering it to produce copies of 5077 of its 90,000 index cards on the basis they
were relevant and not requested as part of an improper “fishing” expedition. Our supreme court
has stated: “The objectives of pretrial discovery are to enhance the truth-seeking process, to
enable attorneys to better prepare for trial, to eliminate surprise[,] and to promote an expeditious
and final determination of controversies in accordance with the substantive rights of the parties.”
D.C. v. S.A., 178 Ill. 2d 551, 561, 687 N.E.2d 1032, 1037 (1997). Illinois Supreme Court Rule
201(b)(1) (eff. July 1, 2014) provides, in part, as follows:
“[A] party may obtain by discovery full disclosure regarding any
matter relevant to the subject matter involved in the pending
action, whether it relates to the claim or defense of the party
seeking disclosure or of any other party, including the existence,
description, nature, custody, condition, and location of any
- 23 ­
documents or tangible things, and the identity and location of
persons having knowledge of relevant facts.”
For purposes of Rule 201(b)(1), relevance has been interpreted broadly to include “not only that
which is admissible at trial, but also that which leads to admissible evidence.” Manns, 349 Ill.
App. 3d at 361, 811 N.E.2d at 352; see also In re Estate of Blickenstaff, 2012 IL App (4th)
120480, ¶ 48, 980 N.E.2d 1285. “[A] [trial] court should deny a discovery request where there is
insufficient evidence that the requested discovery is relevant or will lead to such evidence.”
Leeson v. State Farm Mutual Automobile Insurance Co., 190 Ill. App. 3d 359, 366, 546 N.E.2d
782, 787 (1989); see also All Asbestos Litigation, 385 Ill. App. 3d at 389, 895 N.E.2d at 1157.
¶ 66 “A trial court is given great latitude in determining the scope of discovery, and
discovery orders will not be disturbed absent an abuse of discretion.” Manns, 349 Ill. App. 3d at
361, 811 N.E.2d at 352; see also D.C., 178 Ill. 2d at 559, 687 N.E.2d at 1036. “The standard of
‘abuse of discretion’ is the most deferential standard of review recognized by the law; a decision
will be deemed an abuse of discretion only if the decision is ‘unreasonable and arbitrary or where
no reasonable person would take the view adopted by the [trial] court.’ ” Pekin Insurance Co. v.
St. Paul Lutheran Church, 2016 IL App (4th) 150966, ¶ 69 (quoting Gulino v. Zurawski, 2015 IL
App (1st) 131587, ¶ 64, 43 N.E.3d 1102). Where reasonable minds could differ on the merits of
the arguments presented, we will defer to the trial court. Estate of Blickenstaff, 2012 IL App
(4th) 120480, ¶ 51, 980 N.E.2d 1285.
¶ 67 Cleaver-Brooks contends plaintiffs failed to present any reasonable argument as
to why the 5064 index cards were relevant or likely to lead to relevant evidence. At the hearing
on the motion to compel, plaintiffs asserted the index cards were relevant, in part, to show the
- 24 ­
scope of Cleaver-Brooks’s sales and product line, their corporate representative’s familiarity
with Cleaver-Brooks’s boilers, and the types of accessories found on different types of boilers
and the maintenance needs of those parts. Cleaver-Brooks presented no argument addressing the
purposes for which plaintiffs asserted the index cards were relevant. Instead, for the first time on
appeal, Cleaver-Brooks takes issue with plaintiffs’ alleged purposes for this evidence. By failing
to present argument before the trial court on this issue, Cleaver-Brooks has forfeited the
opportunity to do so on appeal. See Vantage Hospitality Group, Inc. v. Q Ill Development, LLC,
2016 IL App (4th) 160271, ¶ 49, 71 N.E.3d 1 (“It has long been the law of the State of Illinois
that a party who fails to make an argument in the trial court forfeits the opportunity to do so on
appeal.”). In reaching its decision, the trial court explicitly found the index cards were relevant to
establish negligence by showing, through Cleaver-Brooks’s corporate representative, “the state
of the art, what products were sold, what the company’s knowledge was at a particular point in
time, [and] if they continued to sell those products after particular points in time.” Cleaver-
Brooks failed to address the court’s reasoning other than a conclusory statement in its initial brief
suggesting the court’s reasoning “fails to justify the sweeping discovery that was ordered.”
Cleaver-Brooks has failed to show the trial court’s conclusion was unreasonable.
¶ 68 Cleaver-Brooks also argues plaintiffs’ “true motive” in seeking the index cards
was to conduct an improper “fishing expedition” to benefit other plaintiffs within and outside of
Illinois. Cleaver-Brooks raised this argument before the trial court. As additional support for its
position, Cleaver-Brooks now cites plaintiffs’ (1) refusal to agree to its inspection agreement,
(2) comments at the January 27, 2017, hearing, suggesting they could use the index cards in
other cases, and (3) refusal to agree to a “confidentiality order” after copies of the tabbed index
- 25 ­
cards were ordered to be produced. We cannot say, even if we consider the additional evidence
Cleaver-Brooks cites for the first time on appeal, the trial court’s rejection of this argument was
unreasonable. That is, we cannot say the trial court’s conclusion the index cards were requested
for a legitimate purpose was unreasonable.
¶ 69 Last, Cleaver-Brooks asserts the trial court’s discovery order is based on the type
of wide, sweeping discovery requests prohibited by our courts. In support, Cleaver-Brooks relies
on All Asbestos Litigation and the cases cited therein. Cleaver-Brooks, both before the trial court
and now on appeal, analogizes the discovery request in this case to the discovery request in All
Asbestos Litigation, 385 Ill. App. 3d at 392, 895 N.E.2d at 1159-60, which the appellate court
found to be overly broad. In that case, even though it was undisputed the defendant did not
provide its product to any jobsite identified by the plaintiffs, the plaintiffs requested the
defendant “to produce all invoices, records, purchase orders, receipts, specifications, bills of
lading, sales memoranda, business records correspondence, publications, sales brochures,
manuals, instruction sheets or any other documents concerning the sales of [the defendant’s]
products to any person or entity in the State of Illinois, as well as documents indicating
knowledge of hazards relating to asbestos fibers or [a]sbestine particles, from 1948 through
1986.” Id. at 388, 895 N.E.2d at 1156. Conversely, in this case plaintiffs requested Cleaver-
Brooks, who provided its product to 11 identified jobsites, to produce copies of 5077 of its
90,000 index cards. We find, unlike the discovery requests in All Asbestos Litigation and the
cases cited therein, plaintiffs’ discovery request was sufficiently limited and does not amount to
the type of wide, sweeping discovery requests prohibited by our courts.
¶ 70 Given the arguments presented at the hearing on the motion to compel and in light
- 26 ­
of the great latitude given to trial courts in determining the scope of discovery, we find Cleaver-
Brooks has failed to demonstrate the trial court abused its discretion in ordering it to produce
copies of 5077 of its 90,000 index cards.
¶ 71 C. February 27, 2017, Contempt Order
¶ 72 Cleaver-Brooks requests we reverse and vacate the February 27, 2017, contempt
order because its refusal to comply with the discovery order was not contemptuous. Plaintiffs do
not present argument on this issue in their brief. Where the refusal to comply with a court order
is made in good faith to preserve an issue for appeal, this court may vacate a contempt order and
monetary fine. Cangelosi v. Capasso, 366 Ill. App. 3d 225, 230, 851 N.E.2d 954, 959 (2006).
Given the record presented, we find Cleaver-Brooks’s refusal to comply with the trial court’s
discovery order was a good-faith effort to test the correctness of the order on appeal. We vacate
the trial court’s order finding Cleaver-Brooks in friendly contempt and assessing a $1 fine.
¶ 73 D. Rule 23 Orders
¶ 74 As a final matter, we must note counsel for Cleaver-Brooks cites multiple orders
filed under Illinois Supreme Court Rule 23 (eff. July 1, 2011) in both its initial and reply briefs.
We remind counsel such orders are not precedential and may not be cited by any party except in
the limited circumstances allowed under Rule 23(e)(1). As such, we have declined to consider
those orders in the resolution of this matter.
¶ 75 III. CONCLUSION
¶ 76 We affirm the February 9, 2017, discovery order, vacate the February 27, 2017,
contempt order; and remand the cause for further proceedings.
¶ 77 Affirmed in part and vacated in part; cause remanded.
- 27 ­