The Illinois First District recently discussed the contours of pre-suit discovery requests in cases that implicate fee speech concerns and whether truthful information can ever support an intentional interference with employment claim.
After relocating from another state to take a compliance role with a large bank, the plaintiff in Calabro v. Northern Trust Corporation, 2017 IL App (1st) 163079-U, was fired after only two weeks on the job for failing to disclose his forced removal from a prior compliance position.
When the employer wouldn’t spill the tea on the snitch’s identity, plaintiff sued. The trial court dismissed plaintiff’s pre-suit discovery petition and plaintiff appealed.
Affirming, the Court construed pre-suit discovery requests under Supreme Court Rule 224 narrowly. That rule allows a petitioner to discover the identity of someone who may be responsible in damages to petitioner.
To initiate a request for discovery under Rule 224, the petitioner files a verified petition that names as defendant the person(s) from whom discovery is sought and states why discovery (along with a description of the discovery sought) is necessary. An order granting a Rule 224 petition is limited to allowing the plaintiff to learn the identity of the responsible party or to at least depose him/her.
To show that discovery is necessary, the petitioner must present sufficient allegations of actionable harm to survive a Section 2-615 motion to dismiss. That is, the petition must state sufficient facts to state a recognized cause of action.
But Rule 224 limits discovery to the identity of someone who may be responsible to the petitioner. A petitioner cannot use Rule 224 to engage in a “vague and speculative quest to determine whether a cause of action actually exists.”
Here, the petitioner didn’t know what was actually said by the third party respondent. The Court viewed this as a tacit admission the plaintiff didn’t know if he had a valid claim.
The Court then focused on the veracity of the third-party’s statement. To be actionable, an intentional interference claim requires the supply of false data about a plaintiff. Accurate and truthful information, no matter how harmful, cannot underlie an intentional interference action. This is because allowing someone to sue on truthful information violates the First Amendment (to the Constitution) and chills free speech.
Truthful statement immunity is also supported by Section 772 of the Restatement (Second) of Torts which immunizes truthful information from contract interference liability. [(¶¶ 18-19]. And since the plaintiff’s claim was based on true information – that plaintiff was fired from his last job – the prospective interference claim was doomed to fail.
This case portrays an interesting application of Rule 224 – a device often employed in the personal injury context. While the rule provides a valuable tool for plaintiffs trying to identify possible defendants, it doesn’t allow a freewheeling “fishing expedition,” The petitioner must still state a colorable claim. In this case, the Court viewed the potential for stifling free speech more worrisome than the individual plaintiff’s private contract rights.