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Appeal from the Circuit Court of Ogle County.

No. 95--D--39

Honorable Stephen C. Pemberton, Judge, Presiding.

JUSTICE COLWELL delivered the opinion of the court:

During the property distribution phase of her marriage dissolution (750 ILCS 5/101 et seq. (West 1996)), respondent, Donna Marie Bonneau, sought the production of certain medical records from petitioner, James R. Bonneau, relating to petitioner's possible testing for, or infection with, the human immunodeficiency virus (HIV), a causative agent of acquired immunodeficiency syndrome (AIDS). Petitioner refused to produce the requested records, despite a trial court order to the contrary, arguing that the records were protected from disclosure under the privilege established in the AIDS Confidentiality Act (Act) (410 ILCS 305/1 et seq. (West 1996)). As a result, the circuit court of Ogle County found petitioner in indirect civil contempt for failure to comply with the court's discovery order, fined him $250, and ordered him to pay $250 for respondent's attorney fees. Petitioner appealed the court's contempt order.


After more than 12 years of marriage, petitioner filed a petition for dissolution of marriage on February 22, 1995. On May 23, 1995, the trial court entered a Judgement for dissolution, reserving questions of maintenance and property distribution.

On July 8, 1996, respondent filed a motion to produce medical records alleging that "on information and belief, was recently hospitalized for an immune system disorder (blood disease and pneumonia)." Respondent then requested petitioner's medical records for "a condition, which may be AIDS or AIDS related."

The trial court eventually granted respondent's motion and ordered petitioner to produce either his medical records or a narrative report from his treating physician. The trial court found that petitioner waived his protections under the Act by instituting the dissolution proceeding, since the court was required to consider the parties' health in determining the distribution of property and the award of maintenance.

The trial court thereafter denied petitioner's motion for reconsideration. Nonetheless, petitioner indicated that he would not produce his medical records or a narrative report. Respondent subsequently filed a petition for adjudication of direct civil contempt. The trial court found petitioner in indirect civil contempt, fined him, and ordered him to pay respondent's attorney fees. Petitioner then filed a timely notice of appeal.


A trial court is vested with the inherent power to enforce its orders and preserve its dignity by the use of contempt proceedings (People v. Warren, 173 Ill. 2d 348, 368 (1996)), and a trial court may use contempt proceedings to compel a party to obey a discovery order (166 Ill. 2d R. 219(c); In re Marriage of Daniels, 240 Ill. App. 3d 314, 323 (1992)). A contempt proceeding is also an appropriate method for testing the correctness of a discovery order. Flannery v. Lin, 176 Ill. App. 3d 652, 655 (1988).

Where an individual appeals a contempt Judgement imposed for violating a discovery order, that discovery order is also subject to review. Almgren v. Rush-Presbyterian-St. Luke's Medical Center, 162 Ill. 2d 205, 216 (1994). Thus, where the trial court's discovery order is invalid, a contempt Judgement for failure to comply with the discovery order must be reversed. Lin, 176 Ill. App. 3d at 655.

Since we are reviewing a discovery order, respondent contends that the standard of review is abuse of discretion. See Maxwell v. Hobart Corp., 216 Ill. App. 3d 108, 110 (1991) (rulings on discovery matters will not be disturbed on appeal absent a manifest abuse of discretion). Regardless, a trial court lacks the discretion to compel the disclosure of information that is privileged or otherwise exempted by statute or by common law. Daniels, 240 Ill. App. 3d at 324. Moreover, where the facts are uncontroverted and the issue is the trial court's application of the law to the facts, as in this case, a court of review may determine the correctness of the ruling independently of the trial court's judgment. First National Bank of Lacon v. Strong, 278 Ill. App. 3d 762, 764 (1996). Accordingly, our review in this matter is de novo. Strong, 278 Ill. App. 3d at 764; cf. D.C. v. S.A., 178 Ill. 2d 551, 559 (1997)(applicability of a statutory discovery privilege is a matter of law).


On appeal, petitioner contends that, since the requested records are privileged under the Act, the trial court erroneously found him in contempt. In response, relying on the common law, respondent argues that petitioner waived the Act's privilege by putting his health in issue.


The number and variety of HIV-related cases has grown in Illinois and across the country. See, e.g., Advincula v. United Blood Services, 176 Ill. 2d 1 (1996)(blood transfusion-liability case); People v. Russell, 158 Ill. 2d 23 (1994) (criminal transmission case); Doe v. Northwestern University, 289 Ill. App. 3d 39 (1997) (personal injury claims within "fear of AIDS" case), pet. for leave to appeal allowed No. 83886; Doe v. Surgicare of Joliet, Inc., 268 Ill. App. 3d 793 (1994) ("fear of AIDS" case). See generally Annotation, State Statutes or Regulations Expressly Governing Disclosure of Fact that Person has Tested Positive for Human Immunodeficiency Virus (HIV) or Acquired Immunodeficiency Syndrome (AIDS), 12 ALR 5th 149 (1993). Contemporaneously, the number and variety of discovery disputes involving HIV-related information has risen. See generally U. Colella, HIV-Related Information and the Tension Between Confidentiality and Liberal Discovery--The Need for a Uniform Approach, 16 J. Legal Med. 33 (1995).

To resolve these discovery disputes, courts must strike the proper balance between competing interests: liberal discovery, public health, and an individual's right to privacy. On the one hand, our society favors and needs liberal discovery. See 166 Ill. 2d R. 201(b)(1)(parties may obtain full disclosure regarding any relevant matter); Wardius v. Oregon, 412 U.S. 470, 473, 37 L. Ed. 2d 82, 87, 93 S. Ct. 2208, 2211 (1973) (pointing out, in a criminal case, the ends of justice are best served by liberal discovery); Winfrey v. Chicago Park District, 274 Ill. App. 3d 939, 949 (1995)(noting Illinois Supreme Court rules permit liberal discovery); see also Mistler v. Mancini, 111 Ill. App. 3d 228, 231-32 (1982)(listing objectives of discovery: enhance the truth-seeking process; enable attorneys to better prepare and evaluate their cases; eliminate surprises; and ensure that judgments rest upon the merits of the case). Consequently, pretrial discovery presupposes a range of relevance and materiality which includes not only what is admissible at trial but also that which leads to what is admissible at trial. Mistler, 111 Ill. App. 3d at 232.

Our need for liberal discovery, however, clashes with our society's need to keep certain matters confidential, through evidentiary privileges, to protect the public health. See D.C. v. S.A., 283 Ill. App. 3d 693, 700 (1996) (our legislature has the power, through the enactment of evidentiary privileges, to inhibit the truth-seeking process to protect certain relationships), rev'd on other grounds, 178 Ill. 2d 551 (1997); FMC Corp. v. Liberty Mutual Insurance Co., 236 Ill. App. 3d 355, 358 (1992) (privileges are designed to protect interests outside the truth-seeking process); see, e.g., 735 ILCS 5/8--802 (West 1996) (physician/patient privilege); 740 ILCS 110/1 et seq. (West 1996) (Mental Health and Developmental Disabilities Confidentiality Act). In particular, in this case, our legislature enacted the Act, with ...

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