Grant v. Rancour

• Decision Date: 12 June 2020
• Docket Number: No. 2-19-0802,2-19-0802
• Citation: 157 N.E.3d 1083,441 Ill.Dec. 726,2020 IL App (2d) 190802
• Parties: Eric K. GRANT and Christine Grant, f/k/a Christine Cherkes, Plaintiffs-Appellees, v. Allison RANCOUR, Fredrick Rancour, and Pamela Rancour, Defendants (Lucas, Olness & Associates, Ltd., Contemnor-Appellant).
• Court: United States Appellate Court of Illinois

2020 IL App (2d) 190802

157 N.E.3d 1083

441 Ill.Dec. 726

Eric K. GRANT and Christine Grant, f/k/a Christine Cherkes, Plaintiffs-Appellees,

v.Allison RANCOUR, Fredrick Rancour, and Pamela Rancour, Defendants

(Lucas, Olness & Associates, Ltd., Contemnor-Appellant).

No. 2-19-0802

Appellate Court of Illinois, Second District.

Opinion filed June 12, 2020

Andrea E. Olness and Mia Lucas, of Lucas, Olness & Associates, Ltd., of Woodstock, for appellant.

Michael C. Holy and Carl M. Schultz, of Holy & Schultz, LLC, of Oakbrook Terrace, for appellees.

JUSTICE ZENOFFdelivered the judgment of the court, with opinion.

¶ 1 Contemnor, Lucas, Olness & Associates, Ltd. (Lucas), counsel for defendant, Allison Rancour, appeals the trial court's order finding Lucas in friendly civil contempt for failing to comply with its order to produce documents during discovery.We affirm in part and vacate in part.

¶ 2 I. BACKGROUND

¶ 3 On August 20, 2013, defendant turned her vehicle into the path of the vehicle occupied by plaintiffs, Eric Grant and Christine Grant.On August 11, 2015, plaintiffs filed a five-count complaint alleging negligence by defendant, as well as negligent-entrustment and agency claims against her parents, Fredrick Rancour and Pamela Rancour.On August 7, 2017, the parties stipulated that (1)defendant negligently caused the accident; (2)plaintiffs' medical bills incurred on the day of the accident were reasonable, necessary, and causally related to the accident; and (3) the claims against Fredrick and Pamela would be dismissed with prejudice.Defendant continued to deny that she was liable for any of plaintiffs' medical bills beyond those incurred on the day of the accident.Discovery proceeded as to the cause and extent of plaintiffs' claimed injuries.

¶ 4 On December 28, 2018, defendant disclosed two "controlled" expert witnesses, Drs. Benjamin Goldberg and Michael Musacchio, when she served plaintiffs with what she characterized as "Defendant's SupplementalRule 213(f) Disclosures."Illinois Supreme Court Rule 213(f)(3)(eff. Jan. 1, 2018) requires a party to disclose the identity and other relevant information of "Controlled Expert Witnesses."On December 31, 2018, plaintiffs responded by serving defendant with supplemental interrogatories seeking, inter alia , information regarding Goldberg's work as a controlled expert on behalf of (1) Lucas; (2)defendant's insurer, State Farm Insurance Company(State Farm); and (3)State Farm's in-house counsel, Bruce Farrel Dorn & Associates (Bruce Farrel).Plaintiffs sought the names of the cases on which Goldberg consulted during the previous five years for each of these entities.For each case, plaintiffs requested documentation showing (1) whether Goldberg treated the patient or simply reviewed medical records, (2) whether he testified, either at a deposition or at a trial, and (3) whether he was retained on behalf of the plaintiffs or the defendants.Lucas responded to the supplemental interrogatories as to Goldberg's consulting work for Lucas but not as to Goldberg's work on behalf of State Farm or Bruce Farrel.On January 7, 2019, plaintiffs filed a motion to compel supplemental written discovery concerning Goldberg.On January 22, 2019, plaintiffs filed a similar motion to compel supplemental written discovery as to Musacchio.Both motions alleged that defendant provided incomplete and deficient answers, because they failed to fully disclose information about Goldberg's and Musacchio's expert witness work for State Farm outside of what they did for Lucas.

¶ 5 On January 25, 2019, at the hearing on the motion to compel supplemental discovery as to Goldberg, Lucas argued that it could not provide the requested discovery, because it was State Farm's outside counsel and had no control over State Farm or Bruce Farrel.Lucas acknowledged that plaintiffs were free to subpoena State Farm and Bruce Farrel directly.

¶ 6 On February 25, 2019, the trial court granted plaintiffs' motions in part, subject to conditions.In its oral ruling, the court directed:

"[T]he insurer, State Farm, shall respond in or defendant shall respond for State Farm in similar manner * * * to the supplemental interrogatories with a list of cases, case number and county, firm hired and amount of compensation paid in such other cases that are separate from [Lucas].Other firms, including Bruce Farrel firm, if those members are employees of State Farm, they're included in this order also."(Emphasis added.)

In its written order, the court specified: "Defendant, her attorneys and insurer shall fully respond to interrogatory and production requests" regarding the legal and consulting work performed by Goldberg and Musacchio for Lucas, State Farm, and Bruce Farrel between 2016 and 2019, along with disclosures of the compensation received for such work.The court directed Goldberg and Musacchio to indicate, if possible, which portion of their legal and consulting income was related to work on behalf of plaintiffs versus defendants.The court ordered that, if that was not possible, Goldberg and Musacchio must identify the percentage of their overall legal and consulting income earned from State Farm during those years.The court further ordered that "State Farm shall respond in similar manner" to the supplemental interrogatories regarding Goldberg and Musacchio with a list of cases, attorneys hired, and compensation paid.In paragraph six of its written order, the court noted: "It is not necessary to separately subpoena State Farm (or Bruce Farrell[sic ] Firm, provided said firm members are employees of State Farm)."The record contains a letter from Bruce Farrel to plaintiffs' attorney that lists all of its attorneys as "employees" of the "Law Department" at State Farm.Finally, the court ordered Goldberg and Musacchio to be presented, at defendant's expense, for supplemental depositions relating to the newly disclosed information.

¶ 7 In her amended answers to the supplemental interrogatories, defendant refused to provide the requested information from State Farm and Bruce Farrel, repeating her previous objections:

"In further answering, Lucas, Olness & Associates, Ltd. and its predecessor law firm, Lucas & Associates, Ltd. is outside counsel, not in-house counsel for, nor an employee of, State Farm Insurance.If Plaintiffs seek documents for the law firm of Bruce, Farrel, Dorn & Associates or State Farm Insurance, Plaintiffs should issue subpoenas to these entities, in accordance with paragraph 6 of the Court's Order of February 25, 2019."

¶ 8 On March 26, 2019, plaintiffs filed a motion for sanctions, alleging that defendant willfully refused to comply with and deliberately ignored the February 25 order.Defendant answered by repeating that Lucas was neither an employee of nor in-house counsel for State Farm, that State Farm and Bruce Farrel were nonparties, and that the proper procedure to procure documents from nonparties was through a subpoena.Defendant interpreted the court's order to exclude Lucas from disclosing information possessed by State Farm or Bruce Farrel, because Lucas was not an employee of State Farm: "The Court's order indicates a recognition that a separate subpoena would be necessary if a law firm was not an employee of State Farm Insurance, presumably to confer jurisdiction in the event of non-compliance with the subpoena."

¶ 9 At the hearing on the motion for sanctions, defendant argued that a reasonable interpretation of the February 25 order was that nonemployees of State Farm would have to be subpoenaed.On July 3, 2019, the court ruled orally on the motion for sanctions:

"I have to agree with plaintiff[s] that the order and the other arguments were clear [in] that paragraph 6 of my order as to say that the insurer may have knowledge of these two expert witnesses and their other cases, and so the insurer shall give that information as well.

Certainly, they are a nonparty, but all of the law on Rule 216andRule 201, et seq. , talk about the knowledge of the attorneys, the insurers, and the client.So that was the basis for the order.

It's clear that the parenthetical information about Bruce Farrel Dorn Law Firm if they are employees of State Farm are also State Farm.So they are fair game too for that information.So that was not provided.

I don't think there is a reasonable argument for not following that; and so therefore, I find that there is a reason for sanctions."

¶ 10 On July 17, 2019, the court instructed plaintiffs' attorney to file a petition for fees and costs relating to defendant's "deliberate abuse of the discovery rule."The court declined to bar Goldberg and Musacchio as witnesses, but it commented that it would entertain the possibility of giving an "adverse inference" jury instruction at trial.The court gave defendant until July 25, 2019, to either produce the records, submit an affidavit stating that the records do not exist, or settle the case.

¶ 11 On August 16, 2019, the court heard arguments on whether defendant had cured the sanctions order.Plaintiffs conceded that defendant had tendered two tax identification number documents (collectively, TIN reports).The first was a four-page spreadsheet from State Farm with data from 2016 through 2019.That spreadsheet contained a tax identification number and columns indicating "date issued,""draft number,""pay code,""COV,""LOB,""tax state," and "payment amount."The last page of the spreadsheet listed a "total paid" of $136,466.13, "total claims" of 17, and "total transactions" of 36.None of the terms were defined or otherwise explained.The second document was a three-page spreadsheet, also from State Farm, with data from 2017 through 2019.This document included a tax identification number and the same column headings as the other spreadsheet.The totals on the final page were "total paid $25,374.50, total claims 8, [and] total transactions 14."Neither spreadsheet identified a particular person or entity with which the...