Salvator v. Cleaver-Brooks, Inc.

• Decision Date: 26 July 2017
• Docket Number: NO. 4-17-0244,4-17-0244
• Parties: LARRY SALVATOR, SR., and MARCIA SALVATOR, Plaintiffs-Appellants, v. CLEAVER-BROOKS, INC., a Division of AQUA-CHEM, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2017 IL App (4th) 170244-U

LARRY SALVATOR, SR., and MARCIA SALVATOR, Plaintiffs-Appellants, v. CLEAVER-BROOKS, INC., a Division of AQUA-CHEM, INC., Defendant-Appellee.

NO. 4-17-0244

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

July 26, 2017

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of McLean County

No. 16L20

Honorable Rebecca S. Foley, Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court.

Presiding Justice Turner and Justice Pope concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, concluding the trial court did not abuse its discretion in staying all litigation pending the resolution of defendant's appeal from a finding of friendly contempt.

¶ 2 In February 2016, plaintiffs, Larry Salvator, Sr., now deceased, and his wife, Marcia Salvator, filed a complaint against Cleaver-Brooks, Inc., a division of Aqua-Chem, Inc. (Cleaver-Brooks), and 42 other defendants for injuries caused by Larry Salvator, Sr.'s exposure to asbestos. In March 2017, the trial court stayed all litigation of plaintiffs' complaint pending the resolution of Cleaver-Brooks' appeal from a finding of friendly contempt. Plaintiffs appeal, arguing the court's decision to stay all litigation was an abuse of its discretion. We disagree and affirm.

¶ 3 I. BACKGROUND

¶ 4 A. Complaint

¶ 5 In February 2016, plaintiffs filed a complaint against Cleaver-Brooks and 42 other defendants, alleging, among other theories, Larry Salvator, Sr., sustained injuries caused by the inhalation of asbestos fibers during his work in close proximity to boilers manufactured by Cleaver-Brooks. Due to the nature of Larry Salvator, Sr.'s injuries, plaintiffs sought and received an expedited discovery and trial schedule.

¶ 6 B. Plaintiffs' Second Request for Production of Discovery

¶ 7 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' corporate representative] at his depositions that he says he uses to perform searches for boilers at job sites."

¶ 8 C. Cleaver-Brooks' Responses and Objections toPlaintiffs' Second Discovery Request

¶ 9 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, 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 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.

¶ 10 D. Inspection Agreement

¶ 11 On January 4, 2017, Cleaver-Brooks sent plaintiffs a proposed inspection 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'[s] 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 [Rule] 201(k) 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 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."

¶ 12 Plaintiffs refused to agree to the terms outlined in Cleaver-Brooks' inspection agreement. Plaintiffs' counsel indicated he would never agree to a one-time inspection but made it clear he would review only those index cards relating to plaintiffs' case.

¶ 13 E. Cleaver-Brooks' Motion for a Protective Order

¶ 14 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 argued the index cards "contain[ed] proprietary and trade secret information[,] including the names of [its] customers," and 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.

¶ 15 F. Hearing on Cleaver-Brooks' Motion for a Protective Order

¶ 16 On January 12, 2017, the trial court held a hearing on Cleaver-Brooks' 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 to protect the proprietary and confidential information in the index cards 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 affected ongoing business, a one-time inspection should be ordered.

¶ 17 Following Cleaver-Brooks' 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' motion was "untimely" as the contents of the index cards had yet to be seen and its assertions were unverified. They assured the court they would not disseminate the customer lists to aid Cleaver-Brooks' business competitors. Plaintiffs also objected to a one-time inspection.

¶ 19 The trial court denied Cleaver-Brooks' 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' 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.

¶ 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 5,077 index cards to be copied and turned over.

¶ 22 H. Cleaver-Brooks' Motion for a Continuance

¶ 23 On January 24, 2017, Cleaver-Brooks filed a motion to continue the February 6, 2017, trial setting. Cleaver-Brooks asserted, due to Larry Salvator, Sr.'s late disclosure of eight new jobsites during his January 16, 2017, deposition, it would be severely prejudiced if it was forced to proceed on the scheduled trial date as it needed to supplement or amend its prior discovery responses, fully investigate...