Horn v. Ne. Ill. Reg'l Commuter Ry. Corp.
| Decision Date | 01 March 2022 |
| Docket Number | 1-21-0268 |
| Citation | 2022 IL App (1st) 210268,202 N.E.3d 924,460 Ill.Dec. 904 |
| Parties | Darrell HORN, Plaintiff-Appellee, v. NORTHEAST ILLINOIS REGIONAL COMMUTER RAILWAY CORPORATION, d/b/a Metra, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Catherine B. Weiler, of Swanson, Martin & Bell, LLP, of Chicago, for appellant.
George T. Brugess and Sara M. Davis, of Cogan & Power, P.C., of Chicago, for appellee.
¶ 1 In February 2019 plaintiff, Darrell Horn, filed a complaint against defendant, Northeast Illinois Regional Commuter Railway Corporation, d/b/a Metra (Metra), pursuant to the Federal Employers’ Liability Act ( 45 U.S.C. § 51 et seq. (2018) ), seeking damages for injuries Horn allegedly sustained in January 2019 in the course of his employment. While Horn was working as a locomotive engineer, the seat he was sitting in while performing work for Metra broke. The parties engaged in discovery. Metra refused to turn over documents generated by its investigator related to surveillance of Horn after his alleged injuries, claiming the materials are privileged under Illinois Supreme Court Rule 201(b)(3) (eff. July 1, 2014). The trial court disagreed and held Metra in "friendly contempt" for the purposes of this appeal.
¶ 2 For the following reasons, we reverse in part and vacate in part.
¶ 4 During discovery, in June 2019, Metra answered Horn's interrogatories. One interrogatory asked Metra whether there had been surveillance of Horn's activities from the date of the occurrence to the present and, if so, asked Metra to state the name and address of the persons conducting the surveillance, whether Metra was in possession of surveillance reports and the dates of any such reports, and whether Metra was in possession of any photographs or video depicting Horn's activities and, if so, the dates they were taken. Metra answered there had been surveillance of Horn's activities and identified Subrosa of Phoenix, Arizona, as the entity conducting the surveillance. Metra also disclosed that it was in possession of surveillance reports from March 1, 7, and 8, 2019, and that there were photographs or video of Horn's activities on those dates. Metra also responded to Horn's request to produce "[a]ny and all surveillance photos, videos, reports or other documents on [Horn] *** from any contractor performing surveillance" with the surveillance videos, without objection, and with redacted reports from Subrosa.
¶ 5 In July 2019, Horn subpoenaed Subrosa's "entire file or other materials related to your surveillance of Darrell Horn." In August 2019, Metra filed a motion to quash Horn's subpoena to Subrosa. Metra's motion to quash argued in part that, pursuant to Rule 201(b)(3), Subrosa's reports are not subject to discovery absent exceptional circumstances and no exceptional circumstances exist to justify disclosing the information Horn sought with the subpoena. In October 2019, the trial court entered an order reserving ruling on Metra's motion to quash, ordering Subrosa to produce responsive documentation directly to Metra and ordering Metra to raise written objections to specific documents. Metra submitted its objections and a privilege log asserting that several Subrosa responses were privileged under Rule 201(b)(3). (The allegedly privileged documents will hereinafter be referred to as the "Subrosa Documents.") Metra submitted Subrosa's response to the trial court for an in camera inspection.
¶ 6 In December 2019, the trial court initially ordered Metra to produce a redacted copy of the Subrosa Documents to Horn, but seven days later, following a hearing, the trial court ordered Metra to produce unredacted Subrosa Documents to Horn. Metra filed a motion to stay the order directing Metra to provide Horn with the unredacted documents so that it could file a motion to reconsider. The trial court denied the motion to stay but granted Metra a date by which to file a motion to reconsider. In January 2020, Metra filed its motion to reconsider. At that time Metra had not complied with the trial court's order to produce the unredacted documents, and Horn filed a petition for a rule to show cause why Metra should not be held in contempt. Metra's motion to reconsider cited Rule 201(b)(3) but argued that "the attorney work product privilege extends to an investigator" and the reports at issue "are communications between Metra's consultant and Metra's Risk Management and Law Department and was prepared in anticipation of litigation," therefore the trial court erred in ordering Metra to produce the documents.
¶ 7 Following briefing on Metra's motion to reconsider and Horn's petition for rule to show cause and a hearing on both pleadings, in August 2020, the trial court entered its orders. The court ordered the petition for rule to show cause would be considered a motion to compel and ordered Metra to produce the unredacted Subrosa Documents. In December 2020, Metra filed a second motion to reconsider based on the November 2020 opinion by the Illinois Supreme Court in Dameron v. Mercy Hospital & Medical Center , 2020 IL 125219, ––– Ill.Dec. ––––, ––– N.E.3d ––––. Metra's motion asserted that Dameron expressly overruled the caselaw that was the basis of Horn's objection to Metra's motion to quash the subpoena to Subrosa (, Shields v. Burlington Northern & Santa Fe Ry. , 353 Ill. App. 3d 506, 288 Ill.Dec. 916, 818 N.E.2d 851 (2004), and Neuswanger v. Ikegai America Corp. , 221 Ill. App. 3d 280, 163 Ill.Dec. 926, 582 N.E.2d 192 (1991) ). Alternatively, Metra asked that the court hold it "in friendly contempt for declining to produce the documents at issue, and allow Metra to file the disputed documents *** under seal, in anticipation of an immediate appeal."
¶ 8 In February 2021, the trial court issued an order denying Metra's motion to reconsider and ordering Metra to produce the unredacted Subrosa Documents to Horn. In March 2021, the trial court entered an order granting Metra's motion for an order finding Metra in friendly contempt for its refusal to produce the Subrosa Documents to Horn and imposing a monetary penalty of $50.
¶ 9 This appeal followed.
¶ 11 This case involves nothing more than a pretrial discovery order, and discovery orders usually are not appealable. Dameron , 2020 IL 125219, ¶ 19, ––– Ill.Dec. ––––, ––– N.E.3d –––– (citing Norskog v. Pfiel , 197 Ill. 2d 60, 69, 257 Ill.Dec. 899, 755 N.E.2d 1 (2001) ). However, the correctness of a discovery order may be tested through a contempt proceeding. Id. (citing Reda v. Advocate Health Care , 199 Ill. 2d 47, 54, 262 Ill.Dec. 394, 765 N.E.2d 1002 (2002) ). When, as in this case, an individual is subject to a contempt sanction imposed for violating, or threatening to violate, a discovery order, "the contempt finding is final and appealable and presents to the reviewing court the propriety of that discovery order." Reda , 199 Ill. 2d at 54, 262 Ill.Dec. 394, 765 N.E.2d 1002. When a discovery order is appealed, we usually afford considerable discretion to the trial court and disturb its rulings only for an abuse of that discretion, such as when its ruling is arbitrary, fanciful, or unreasonable. Carlson v. Michael Best & Friedrich LLP , 2021 IL App (1st) 191961, ¶ 75, ––– Ill.Dec. ––––, ––– N.E.3d ––––. However, "the applicability of a statutory evidentiary privilege, and any exceptions thereto, are matters of law subject to de novo review." Reda , 199 Ill. 2d at 54, 262 Ill.Dec. 394, 765 N.E.2d 1002. This case requires us to determine whether the privilege afforded by Rule 201(b)(3) to a consultant's work product applies in this case as well as the scope of that privilege, i.e. , whether there is an exception to the privilege for purely factual information such as video recordings. These are all questions of law subject to de novo review. Id. ; Norskog , 197 Ill. 2d at 70-71, 257 Ill.Dec. 899, 755 N.E.2d 1.
¶ 12 The only discovery rule at issue in this case is Rule 201(b)(3). Rule 201(b)(3) reads as follows:
Ill. S. Ct. R. 201(b)(3) (eff. July 1, 2014).
As the basis of Metra's second motion to reconsider, which the trial court denied leading to the imposition of the finding of contempt, and because it is the most recent, and to some extent only, pronouncement on the questions raised by this appeal, this case is controlled by our supreme court's holdings in Dameron .
¶ 13 In Dameron , the plaintiff disclosed a doctor as a controlled expert witness pursuant to Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007). Dameron , 2020 IL 125219, ¶ 4, ––– Ill.Dec. ––––, ––– N.E.3d ––––. The disclosure of the doctor as a controlled expert included only the doctor's identity but not the results of testing the doctor would later perform on the plaintiff. Id. After the doctor performed the tests, the plaintiff sought to withdraw the doctor as a controlled expert and to redesignate him a consultant within the meaning of Rule 201(b)(3). The plaintiff also affirmatively sought to preclude discovery of the doctor's opinions and facts known by the doctor absent a showing of exceptional circumstances under Rule 201(b)(3). Id. ¶ 6. The trial court denied the plaintiff's motion to redesignate the doctor as a consultant and ordered the plaintiff to produce the doctor's records. Id. ¶ 8. The appellate court reversed. Id. ¶ 9. Our supreme court affirmed the appellate court's order reversing the trial court. Id. ¶ 53.
¶ 14 First, our ...
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