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Gaynor v. Burlington Northern and Santa Fe Railway

May 24, 2001

JOHN GAYNOR, PETITIONER-APPELLEE,
v.
BURLINGTON NORTHERN AND SANTA FE RAILWAY, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 99-MR-483 Honorable Lewis E. Mallott, Judge, presiding.

The opinion of the court was delivered by: Presiding Justice Chapman

Burlington Northern and Santa Fe Railway (respondent) appeals from an October 14, 1999, order entered in Madison County circuit court granting a Supreme Court Rule 224 (134 Ill. 2d R. 224) petition for presuit discovery. The issues presented for review are whether the petitioner's verified petition for discovery exceeded the scope of Illinois Supreme Court Rule 224, whether the trial court abused its discretion in granting the Rule 224 petition, and whether a cause of action exists under the Right of Publicity Act (765 ILCS 1075/1 et seq. (West 1998)) against IPSA International. We reverse.

I. Jurisdiction

Before addressing the merits of the instant appeal, we must first address this court's jurisdiction to hear it. Jurisdiction can be neither stipulated to nor waived by the parties (Provident Life & Accident Insurance Co. v. Smith, 266 Ill. App. 3d 705, 639 N.E.2d 627 (1994)), and this court must determine sua sponte whether jurisdiction exists (Salemi v. Klein Construction Co., 266 Ill. App. 3d 110, 639 N.E.2d 629 (1994)). It is necessary to first determine whether the trial court order granting a Rule 224 petition for discovery is a final and appealable order pursuant to Illinois Supreme Court Rule 301 (155 Ill. 2d R. 301). Because the filing of a Rule 224 petition creates an independent action for discovery (134 Ill. 2d R. 224) and an order entered on a Rule 224 petition finally adjudicates the rights of the parties and terminates the litigation, appellate jurisdiction exists. See F.H. Prince & Co. v. Towers Financial Corp., 266 Ill. App. 3d 977, 640 N.E.2d 1313 (1994); Anest v. Bailey, 265 Ill. App. 3d 58, 637 N.E.2d 1209 (1994).

II. Facts

As noted above, the instant appeal raises issues concerning the scope of allowable discovery under Supreme Court Rule 224. On August 31, 1999, several employees of respondent allegedly reported to the company that they were ill and, therefore, would not be reporting to work that day. As a result of what respondent considered an unusual number of employees calling in sick, the company hired an investigative service to perform surveillance and videotape a particular golf outing that it suspected the allegedly sick employees might attend.

On September 23, 1999, John Gaynor (petitioner) filed a verified petition for discovery under Supreme Court Rule 224. In his petition, petitioner stated that respondent hired an entity known as IPSA International to provide certain investigative services on August 31, 1999, and that IPSA International recorded several hours of videotape. Petitioner gained access to a videotape with an IPSA International label. Since petitioner viewed only three minutes of the videotape, he does not know the frequency at which or the duration for which his image was recorded or the identity and affiliation of those who performed such surveillance.

On September 23, 1999, petitioner filed a separate suit against IPSA International for damages allegedly arising from this incident. That suit, which was filed the same day as the petition under Supreme Court Rule 224 was filed, was pending in the circuit court of Madison County, Illinois, at the time this appeal was commenced.

In his Rule 224 petition, petitioner sought (1) the name and address of every firm retained by respondent to perform surveillance at or near the Arlington Golf Club on August 31, 1999, (2) the name, address, and employment affiliation of every individual who performed surveillance at or near the Arlington Golf Club on August 31, 1999, (3) all contracts or other documents referencing a relationship between respondent and IPSA International and any other firm or individuals connected with surveillance performed at the request of respondent at or near the Arlington Golf Club on August 31, 1999, and (4) all photographs, motion pictures, or video and audio recordings resulting from surveillance performed at the request of respondent at or near the Arlington Golf Club on August 31, 1999. Petitioner alleged that the information requested in the petition was necessary to determine who might be liable to him for damages under the Right of Publicity Act.

The trial court, after a hearing on the petition, granted petitioner's verified petition for discovery and ordered respondent to produce the materials requested in the petition. Respondent appealed. Respondent then filed, and the trial court granted, a motion to stay the trial court's order to produce the discovery, pending this appeal.

III. Rule 224

Supreme Court Rule 224(a)(1) (134 Ill. 2d R. 224(a)) provides as follows:

"(i) A person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for discovery.

(ii) *** The petition shall be brought in the name of the petitioner and shall name as respondents the persons or entities from whom discovery is sought and shall set forth: (A) the reason the proposed discovery is necessary and (B) the nature of the discovery sought and shall ask for an order authorizing the petitioner to obtain such discovery. The order allowing the petition ...


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