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Salvator v. Air & Liquid Systems Corp.

Court of Appeals of Illinois, Fourth District

December 5, 2017

LARRY SALVATOR, SR., and MARCIA SALVATOR, Plaintiffs,
v.
AIR & LIQUID SYSTEMS CORPORATION, Successor to Buffalo Pumps Inc.; AURORA PUMP COMPANY; BRAND INSULATIONS, INC.; BORG WARNER MORSE TEC, INC., as Successor by Merger to Borg Warner Corp.; BRIDGESTONE AMERICAS, INC.; BURNHAM, LLC; BW/IP, INC.; BRYANT HEATING & COOLING SYSTEMS; CARRIER CORPORATION; CHICAGO GASKET COMPANY; CLEAVER-BROOKS, a Division of Aqua-Chem, Inc.; CRANE COMPANY; DAP, INC.; DURO DYNE CORPORATION; FLOWSERVE CORPORATION, f/k/a Duriron Company, Inc., and as Successor to Byron Jackson Pump Division, Durco, And BW/IP International, Inc.; FMC CORPORATION, Successor of Peerless Pumps; GENERAL GASKET CORPORATION; GEORGIA-PACIFIC LLC; GOULDS PUMPS (IPG), INC.; HONEYWELL INTERNATIONAL, INC.; INGERSOLL-RAND COMPANY; ITT CORPORATION; JOHN CRANE, INC.; JP BUSHNELL PACKING SUPPLY CO.; McMASTER-CARR SUPPLY CO.; METROPOLITAN LIFE INSURANCE COMPANY; OWENS-ILLINOIS, INC.; PNEUMO ABEX LLC; SCHNEIDER ELECTRIC USA INC., f/k/a Square D; SEARS, ROEBUCK & COMPANY; SPRINKMANN SONS CORPORATION; STERLING FLUID SYSTEMS (USA) LLC; SUPERIOR BOILER WORKS, INC.; TACO, INC.; TENNECO AUTOMOTIVE OPERATING COMPANY; TRANE U.S. INC.; UNION CARBIDE CORPORATION; VIKING PUMP, INC.; WARREN PUMPS LLC; WEIL-MCLAIN COMPANY; WESTERN AUTO SUPPLY COMPANY; YORK INTERNATIONAL CORPORATION; and ZURN INDUSTRIES LLC, Defendants (Cleaver-Brooks, Inc., a Division of Aqua-Chem, Inc., Defendant-Appellant).

         Appeal from Circuit Court of McLean County No. 16L20 Honorable Rebecca S. Foley, Judge Presiding

          JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Steigmann and Appleton concurred in the judgment and opinion.

          OPINION

          KNECHT JUSTICE

         ¶ 1 Defendant, Cleaver-Brooks, Inc., a division of Aqua-Chem, Inc. (Cleaver- Brooks), appeals from the trial court's order finding it in "friendly contempt" and assessing a $1 fine for failing to comply with an order requiring it to produce copies of certain documents to plaintiffs, Larry Salvator, Sr., now deceased, and his wife, Marcia Salvator, in discovery. Cleaver-Brooks requests we reverse and vacate the discovery and contempt orders because (1) the court abused its discretion in ordering it to produce copies of the requested documents and (2) its refusal to comply with the discovery order was not contemptuous. We affirm the discovery order, vacate the contempt order, and remand for further proceedings.

         ¶ 2 I. BACKGROUND

         ¶ 3 A. Complaint

         ¶ 4 In February 2016, plaintiffs filed a complaint against Cleaver-Brooks and 42 other defendants, alleging, in part, Larry Salvator, Sr., sustained injuries caused by the inhalation of asbestos fibers during his work in close proximity to "asbestos[-]containing boilers, and associated gaskets and insulation" manufactured by Cleaver-Brooks in the 1960s and 1970s. Plaintiffs alleged theories of negligence based on Cleaver-Brooks's failure to (1) warn the exposure to asbestos caused serious disease, pulmonary fibrosis, malignancies, and death and (2) provide instruction as to safe methods, if any existed, of handling and processing asbestos-containing products. Larry Salvator, Sr., ultimately identified 11 jobsites where he worked with equipment manufactured by Cleaver-Brooks. Due to the nature of Larry Salvator, Sr.'s injuries, plaintiffs sought and received an expedited discovery and trial schedule.

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

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

         ¶ 7 C. Cleaver-Brooks's Responses and Objections to Plaintiffs' Second Discovery Request

         ¶ 8 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 [sic], 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.

         ¶ 9 D. Inspection Agreement

         ¶ 10 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' 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[n [Illinois Supreme Court Rule] 201(k) [(eff. July 1, 2014)] 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."

         ¶ 11 Plaintiffs refused to agree to the terms outlined in Cleaver-Brooks's inspection agreement.

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

         ¶ 13 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 initially noted it had previously "objected to the production of all 90, 000 index cards as overly broad in time and scope, unduly burdensome and oppressive, not specified with reasonable particularity, seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, and too voluminous to produce, but agreed to make them available for [p]laintiffs' inspection at a mutually agreeable date and time." Cleaver-Brooks argued the index cards "contain[ed] proprietary and trade secret information[, ] including the names of [its] customers, " and the "[i]nspection and production of the confidential information *** prior to a protective order limiting the use of said information would put [it] at a significant competitive disadvantage by allowing competitors and other similarly situation the opportunity to access confidential customer information." Cleaver-Brooks 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.

         ¶ 14 Attached to Cleaver-Brooks's motion was a proposed protective order, which indicated, in part, (1) "Cleaver-Brooks shall make available for inspection by [p]laintiffs *** over approximately 90, 000 index cards" and (2) "[f]urnishing the index cards for inspection to the [p]laintiffs shall not constitute a waiver of any objections by Cleaver-Brooks as to the relevance of any individual index card[, and] [s]hould there be any disputes over relevance, those disputes shall be addressed in a *** Rule 201(k) conference prior to production by Cleaver-Brooks."

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

         ¶ 16 On January 12, 2017, the trial court held a hearing on Cleaver-Brooks's 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 prior to the "production of [the] index cards" to protect their proprietary and confidential information 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's 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's motion was "untimely, " as the contents of the index cards had yet to be seen and its assertions were unverified. As an example, plaintiffs stated:

"In the past, what has happened in cases I've been involved with document inspections is, we've gone to look at the documents. We've marked the documents that we wanted. And then defense counsel would say, ['o]kay, you've marked, you know, 100 pages or 200 pages or whatever.['] And then they would have their counsel look at ...

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