Let’s see. 12 court hearings over a year-and-a-half devoted entirely to discovery disputes. 7 missed deadlines – 3 of which were “final” – and one of those 3 was even “final, final, final, final, final!”. And still – no discovery compliance from the plaintiff. There was even an intermediate contempt sanction of a $500 fine and another court order assessing a daily fine of $50 to induce plaintiff to appropriately respond to defendant’s discovery. Again, nothing. So what’s a judge to do?
In Illinois, she has options. Many of them. Supreme Court Rule 219 gives the court wide latitude to fashion myriad sanctions against litigants to ensure discovery compliance and dissuade future violations. The sanctions options include striking pleadings and defenses, entering default orders and barring a violating party from raising defenses or offering evidence on the subject of the unanswered discovery requests. Even outright dismissal with prejudice, the harshest sanction of all, is allowed if the discovery abuse is severe enough. See SCR 219(c)(v).
Master Hand Contractors, Inc. v. Convent of Sacred Heart, 2013 IL App (1st) 123788-U, a factual snapshot of which is the lead-in to this article, illustrates especially egregious discovery conduct. There, the trial court dismissed a mechanics’ lien plaintiff’s suit with prejudice after it violated 7 court discovery orders (3 with “final” deadlines) over an 18-month time span. The First District affirmed the trial court’s ultimate sanction based on the plaintiff’s pattern of discovery abuses and blatant flouting of multiple court orders.
Facts: Plaintiff general contractor filed a mechanics lien suit to recover on a $2,000,000-plus construction contract for renovation work on a private school. The plaintiff’s lien claim was nearly $400,000. The case quickly degenerated into an acrimonious discovery dispute with the defendant school repeatedly serving unanswered discovery requests on the plaintiff contractor. Most of the school’s discovery requests sought plaintiff’s “electronically stored information” (ESI). Over the course of a year-and-a-half and 12 separate hearings devoted to discovery issues, the contractor still hadn’t properly answered the school’s ESI requests. Eventually, the trial court – after first assessing several progressive sanctions short of dismissal – had seen enough and dismissed plaintiff’s suit with prejudice under Supreme Court Rule 219(c)(v). Master Hand, ¶¶ 9-10. The contractor appealed on the basis that the dismissal sanction was too harsh.
Held: trial court affirmed. Plaintiff’s case dismissed with prejudice.
Supreme Court Rule 219 provides for progressive sanctions including dismissal with prejudice. A court also has inherent authority to control its docket and to sanction discovery abuses. Master Hand, ¶15. Dismissal power is proper where the “record shows deliberate and continuing disregard for the court’s authority.” Id. A trial court’s decision to impose sanctions is reviewed for an abuse of discretion which means, in the discover sanctions context, that “no reasonable person would agree with the position adopted by the trial court.” Master Hand, ¶ 13.
Here, because plaintiff violated so many court orders over such a lengthy time frame, the trial court had discretion to dismiss plaintiff’s case. The First District also noted that the trial court “progressively disciplined” the plaintiff; giving it many chances to comply with discovery – as evidenced by the three “final” deadlines issued by the court – and to escape sanctions. Master Hand, ¶ 15. The Court also pointed out that the trial judge was uniquely qualified to assess the propriety of the defendant’s discovery requests (which plaintiff claimed was “abusive”) since the judge specifically handled mechanics lien cases and was versed in document-intensive construction disputes.
Take-aways: Discovery rules and court orders aren’t suggestions or advisory. While dismissal with prejudice is extreme and there are more mild sanctions choices, the trial court here didn’t dismiss plaintiff’s case lightly. In fact, each sanction assessed by the court was carefully calibrated to give the plaintiff a chance to comply with discovery and to have its case heard on the merits. But after so many hearings and blown deadlines, the case became farcical and the court had no choice but to dismiss it. Master Hand also underscores the importance of having proper ESI search and production protocols in place. It’s clear that plaintiff’s lack of ESI discovery savvy was a major deficiency in its discovery responses and was critical to the trial court’s dismissal sanction.