Salvator v. Air & Liquid Systems Corp.
92 N.E.3d 529
Ill. App. Ct.2018Background
- Plaintiffs sued Cleaver-Brooks (and others) for asbestos exposure from boilers; expedited discovery was ordered. Plaintiffs identified 11 jobsites where exposure allegedly occurred.
- Plaintiffs requested copies of internal "index cards" Cleaver-Brooks used to locate boilers; Cleaver-Brooks said it had ~90,000 cards and agreed to inspection only, proposing confidentiality and copying limits.
- Plaintiffs inspected the cards and tabbed 5,077 for copying. Cleaver-Brooks initially allowed inspection but later reviewed the tabbed cards and said only 13 were relevant to plaintiffs’ identified jobsites.
- Plaintiffs moved to compel copies of the 5,077 tabbed cards; the trial court granted the motion (Feb. 9, 2017) and ordered production of the tabbed copies.
- Cleaver-Brooks refused to produce the copies and sought a protective order and/or to be found in "friendly contempt" to preserve appellate rights; the trial court found it in friendly contempt and fined $1 (Feb. 27, 2017).
- On interlocutory appeal, the appellate court affirmed the discovery order, vacated the contempt finding and $1 fine, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of discovery — are the 5,077 tabbed index cards producible? | Tabbed cards are relevant to scope of business, products sold, state of the art, impeachment, and may lead to admissible evidence. | Many tabbed cards are irrelevant to identified jobsites and represent an improper fishing expedition; production for inspection ≠ waiver of relevance objections. | Court affirmed order to produce copies of tabbed cards: relevance is broad and Cleaver-Brooks forfeited relevance objections by voluntarily permitting inspection without reservation. |
| Waiver/forfeiture — did Cleaver-Brooks preserve its relevance objection after inspection? | N/A (plaintiffs argue production/inspection waived relevance objections). | Inspection does not automatically waive objection to copying/production; defendant reserved right to review for relevance. | Appellate court: Cleaver-Brooks forfeited relevance objection by providing inspection without obtaining court ruling or agreement preserving review right; Illinois authority does not support the inspection/production distinction urged by defendant. |
| Alleged fishing expedition / overbroad request | Plaintiffs limited request to cards they deemed relevant (5,077 of 90,000); not overbroad like All Asbestos Litigation. | Plaintiffs’ volume and comments show intent to use cards in other cases; request resembles prohibited sweeping discovery. | Court found request sufficiently limited and distinguishable from cases striking broader demands; did not find abuse of discretion. |
| Contempt — was defendant’s refusal contemptuous or protected good-faith appellate preservation? | Plaintiffs contended refusal was bad-faith delay and sought relief (but initially delayed asking court to enforce). | Refusal was a good-faith attempt to preserve appellate rights and challenge the discovery order. | Contempt finding vacated: refusal deemed good-faith to test order on appeal; appellate court vacated the $1 friendly-contempt fine. |
Key Cases Cited
- Manns v. Briell, 349 Ill. App. 3d 358 (Illinois App. Ct.) (discovery relevance is broadly construed to include matters leading to admissible evidence)
- In re All Asbestos Litigation, 385 Ill. App. 3d 386 (Illinois App. Ct.) (striking overly broad, sweeping discovery requests in asbestos context)
- Gallagher v. Lenart, 226 Ill. 2d 208 (Ill. 2007) (distinguishing forfeiture and waiver)
- D.C. v. S.A., 178 Ill. 2d 551 (Ill. 1997) (objectives of pretrial discovery and broad scope under Rule 201)
- Norskog v. Pfiel, 197 Ill. 2d 60 (Ill. 2001) (contempt appeals may encompass review of underlying discovery orders)
- Cangelosi v. Capasso, 366 Ill. App. 3d 225 (Ill. App. Ct.) (vacating contempt where refusal to comply was in good faith to preserve appellate rights)