Loyola University Chicago Law Journal
Volume 24
Issue 4 Summer 1993 Illinois Judicial Conference
Symposium

Article 4

1993

Supreme Court Rule 219: The Consequences of
Refusal to Comply with Rules or Orders Relating
to Discovery or Pretrial Conferences
Leonard E. Gross
Prof. of Law, Southern Illinois University School of Law

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Leonard E. Gross, Supreme Court Rule 219: The Consequences of Refusal to Comply with Rules or Orders Relating to Discovery or Pretrial
Conferences, 24 Loy. U. Chi. L. J. 471 (1993).
Available at: http://lawecommons.luc.edu/luclj/vol24/iss4/4

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 Supreme Court Rule 219: The Consequences of
Refusal to Comply with Rules or Orders
Relating to Discovery or Pretrial

Conferences
Leonard E. Gross*
I.

INTRODUCTION

To ensure the expedited resolution of cases on their merits,
courts must diligently enforce discovery rules. To this end,
Supreme Court Rule 2191 authorizes a court to impose sanctions
* Professor of Law, Southern Illinois University School of Law; B.A., S.U.N.Y.,
Binghamton 1973; J.D., Boston University, 1976. I appreciate the excellent work of my
research assistants, Denise Talbert and Cynthia Gendry.
1. Rule 219 provides as follows:
(a) Refusal to Answer or Comply with Request for Production. If a party or
other deponent refuses to answer any question propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer. Thereafter, on
notice to all persons affected thereby, he may move the court for an order
compelling an answer. If a party or other deponent refuses to answer any
written question upon the taking of his deposition or if a party fails to
answer any interrogatory served upon him, or to comply with a request for
the production of documents or tangible things or inspection of real property, the proponent of the question or interrogatory or the party serving
the request may on like notice move for an order compelling an answer or
compliance with the request. If the court finds that the refusal or failure
was without substantial justification, the court shall require the offending
party or deponent, or the party whose attorney advised the conduct complained of, or either of them, to pay to the aggrieved party the amount of
the reasonable expenses incurred in obtaining the order, including reasonable attorney's fees. If the motion is denied and the court finds that the
motion was made without substantial justification, the court shall require
the moving party to pay to the refusing party the amount of the reasonable
expenses incurred in opposing the motion, including reasonable attorney's
fees.
(b) Expenses on Refusal to Admit. If a party, after being served with a request to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof, and if the party requesting the
admissions thereafter proves the genuineness of the document or the truth
of the matter of fact, he may apply to the court for an order requiring the
other party to pay him the reasonable expenses incurred in making the
proof, including reasonable attorney's fees. Unless the court finds that
there were good reasons for the denial or that the admissions sought were
of no substantial importance, the order shall be made.
(c) Failure to Comply with Order or Rules. If a party, or any person at the

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upon parties or their attorneys if the court determines that discovery rules and procedures have been abused. 2 This Article will analyze the various approaches to discovery sanctions. The Article
will also examine situations in which discovery sanctions are appropriate, with particular reference to the degree of culpability required. Recommendations will then be made regarding means by
which attorneys can be deterred from engaging in discovery abuse.
Finally, the Article will focus on the question of how trial judges
should determine the proper sanctions for particular discovery
abuse.
instance of or in collusion with a party, unreasonably refuses to comply
with any provision of part E of article II of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply
with any order entered under these rules, the court, on motion, may enter,
in addition to remedies elsewhere specifically provided, such orders as are
just, including, among others, the following:
(i) that further proceedings be stayed until the order or rule is complied
with;
(ii) that the offending party be debarred from filing any other pleading
relating to any issue to which the refusal or failure relates;
(iii) that he be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue;
(iv) that a witness be barred from testifying concerning that issue;
(v) that, as to claims or defenses asserted in any pleading to which that
issue is material, a judgment by default be entered against the offending party or that his action be dismissed with or without prejudice;
or
(vi) that any portion of his pleadings relating to that issue be stricken
and, if thereby made appropriate, judgment be entered as to that
issue.
In lieu of or in addition to the foregoing, the court may order that the
offending party or his attorney pay the reasonable expenses, including attorney's fees incurred by any party as a result of the misconduct, and by
contempt proceedings compel obedience by a party or person to any subpoena issued or order entered under the rules. Notwithstanding the entry
of a judgment or an order of dismissal, whether voluntary or involuntary,
the trial court shall retain jurisdiction to enforce, on its own motion or on
the motion of any party, any order imposing monetary sanctions, including such orders as may be entered on motions which were pending hereunder prior to the filing of a notice or motion seeking a judgment or order of
dismissal.
(d) Abuse of Discovery Procedures. The court may order that information
obtained through abuse of discovery procedures be suppressed. If a party
wilfully obtains or attempts to obtain information by an improper discovery method, wilfully obtains or attempts to obtain information to which he
is not entitled, or otherwise abuses these discovery rules, the court may
enter any order provided for in paragraph (c) of this rule.
ILL. REV. STAT. ch. I10A, para. 219 (1991).
2. King v. American Food Equip., 513 N.E.2d 958, 966 (Ill. App. Ct. 1987).

 Supreme Court Rule 219

1993]

II.

APPROACHES TO SANCTIONS

Imposing sanctions for discovery violations serves two basic purposes: it encourages future compliance with discovery rules, and it
punishes noncompliance with discovery rules. The vast majority of
the courts impose sanctions in order to encourage future discovery, 3 reasoning that it is better to decide a case on its merits than
on a party's technical failure to comply with discovery rules.4 .Usually these courts impose the minimum sanction necessary to advance discovery and obtain a trial on the merits.' In Zimmer v.
Melendez,6 for example, the appellate court held that the trial
court committed reversible error by barring a surprise witness for
the plaintiff because the plaintiff had given the defendant sufficient
information about the witness's testimony during discovery.7
Some courts, reasoning that sanctions should be used to coerce
discovery, have imposed progressively harsher sanctions proportionate to the gravity of the violations. For example, in Jaffe v.
Fogelson,8 the appellate court held that a summary judgment sanction was inappropriate because there was no indication that the
trial court had previously attempted to impose a less severe sanction. Similarly, in Kubian v. Labinsky 9 the appellate court reversed the trial court's dismissal of the plaintiff's complaint. The
trial court had taken this action because the plaintiff had misrepresented certain information to the court and had failed to comply
with discovery orders. After determining that sanctions were necessary and proper,10 the Kubian court concluded that the trial
court should not have dismissed the case; instead, the Kubian court
reasoned, it should have imposed progressively harsher sanctions
proportionate to the gravity of the violations. I1
In contrast with courts that favor the nonpunitive approach to
3. See, e.g., Peoples Gas, Light & Coke Co. v. Chicago Black Improvement Ass'n,
502 N.E.2d 8, 10 (Ill. App. Ct. 1986) (sanctions should be the least drastic necessary to
obtain the goal of discovery in that case; litigation-ending sanctions are drastic).
4. See, e.g., In re Henry, 530 N.E.2d 571, 576 (Ill. App. Ct. 1988) (ascertainment of
truth and elimination of surprise are the goals of discovery; the trial court should not
impose sanctions when they would interfere with these goals).
5. See King, 513 N.E.2d at 967-68 (action dismissed for plaintiff's withholding evidence until trial is appropriate but further sanctions against plaintiff would not be justified); Nehring v. First Nat'l Bank in DeKalb, 493 N.E.2d 1119, 1125 (Ill. App. Ct. 1986)
(once the party has fully complied with discovery, dismissal is inappropriate).
6. 583 N.E.2d 1158 (Ill. App. Ct. 1991).
7. Id. at 1162.
8. 485 N.E.2d 531, 533 (111. App. Ct. 1985).
9. 533 N.E.2d 22, 29 (Ill. App. Ct. 1988).
10. Id. at 28.
11.

Id. at 29.

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sanctions, in TransamericaInsurance Group v. Lee' 2 the First District held that the purpose of sanctions is to penalize the offending
individual. In Transamerica, the court affirmed an award of attorney's fees of $5,000 for giving a false interrogatory answer, even
though only $2,500 of attorney's fees had been incurred. 3 This
punitive approach is based on the Illinois Supreme Court's holding
in Buehler v. Whalen .14 In Buehler, the defendant gave false answers to interrogatories under oath and secreted evidence that
would have been damaging to its case.' 5 The supreme court stated
in dicta that the trial court would have been justified in striking the
defendant's answer.' 6 According to the Buehler court, discovery
would be ineffective if trial courts countenanced violations; thus,
trial judges should 17unreservedly impose sanctions proportionate to
the circumstances.
Some courts justify the assessment of punitive sanctions as a deterrence. II Attorneys and parties, they reason, will be less likely to
violate discovery orders if a big stick rather than a small stick is
held over their heads."
The punitive approach taken by the First District in Transamerica has serious flaws. The most troublesome aspect of the decision
is its subjectivity, which invites appellate scrutiny. Without a clear
standard for determining sufficient punishment, different judges
may impose vastly different sanctions. On the other hand, unless
all incentives for discovery abuse are removed, the abuse is likely to
continue.
At present, law firms have some incentives to abuse discovery
rules. First, an abuse, especially when it consists of a failure to
provide relevant documents, may go undetected. Second, the opposing counsel may decide that obtaining the withheld information
is not worth the necessary effort and expense. If a law firm sue12. 518 N.E.2d 413, 415 (Ill. App. Ct. 1987).
13. Id.
14. 374 N.E.2d 460 (Ill. 1977).
15. Id. at 467.
16. Id.
17. Id.
18. See Coils v. City of Chicago, 571 N.E.2d 951, 984 (Ill. App. Ct. 1991).
19. Phelps v. O'Malley, 511 N.E.2d 974, 982 (Ill. App. Ct. 1987) (since plaintiff did
not disclose expert witness upon request by defendant, barring witness would have been
the proper sanction even though defendant had deposed witness); Perimeter Exhibits,
Ltd. v. Glenbard Molded Binder, Inc., 461 N.E.2d 44, 53 (Ill. App. Ct. 1984) (affirming
trial court's ruling that the defendant's consistent delays warranted default judgment as a
sanction and reasoning that such an action provided an incentive for future compliance).
See generally Kathleen M. Potocki, Note, Policing Discovery Under Illinois Supreme
Court Rule 219(c): A Search for Judicial Consistency, 21 Loy. U. Cm. L.J. 973 (1990).

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Supreme Court Rule 219

ceeds in withholding information, its client stands to benefit directly and the law firm indirectly. The potential gain for a law firm
working on a contingent fee basis is obvious. Even a law firm
working on an hourly basis stands to gain in the eyes of its client
20
from the firm's enhanced image as an aggressive litigator.
To remove incentives for misconduct, courts can require firms
that engage in discovery abuse to produce withheld information
and pay opponents' legal fees. Obviously sanctions imposed
against an attorney cannot be passed on to the client. 21 However, a
firm retained on an hourly basis may try to bill a client for time
spent in preparing an abusive set of interrogatories or for time
spent in defending its discovery abuse. To further discourage discovery abuse, judges should order counsel not to bill their clients
for such expenses.
Frequently, lawyers have been denied recovery for legal services
connected with malpractice, negligence, or misconduct. 22 Discovery abuse should be treated like legal malpractice. Even if no sanctions are directly imposed against clients for violations, the lawyers
should not be paid for their services. Moreover, judges should not
take the position that fee disputes resulting from discovery abuses
are better left to civil lawsuits between attorneys and clients. Clients may not realize that work connected with defending improper
discovery tactics should not be compensable. Thus, judges should
specifically order attorneys not to charge their clients for time
misspent on abusive discovery demands or on the wrongful withholding of requested discovery information. By directly addressing
this issue in a discovery order, judges up the ante for lawyers. If a
lawyer attempts to pass on costs to a client, the lawyer may be held
in contempt of court or referred to the Attorney Registration and
Disciplinary Commission for ethical sanctions.
It is appropriate for all courts to bar attorneys from charging
clients for services rendered in conjunction with discovery abuse.
Courts that espouse a nonpunitive view of discovery sanctions
could impose these sanctions because the sanctions are directly tied
20. See Gary Taylor, Texas Sets its Sights on 'Rambo,' NAT'L L.J., July 31, 1989, at
3, col. 1.
21. Cf. Association of the Bar of the City of New York, Op. 1989-3, summarized in
ABA/BNA LAWYERS' MANUAL ON PROFESSIONAL CONDUCT ETHICS OPINIONS
901:6410 (unethical for a lawyer to enter into agreement with client to shift responsibility
for sanctions that may be or have been incurred).
22. See In re Estate of Halas, 512 N.E.2d 1276 (Ill. App. Ct. 1987) (affirming denial
of approximately one-half of a law firm's legal fees because of its breach of fiduciary duty
and conflict of interest).

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to the abuse itself and prevent the lawyer from profiting from the
abuse. Moreover, these sanctions have the advantage of being less
arbitrary than punitive sanctions.
III.

RULE 201(K) - REASONABLE ATTEMPT TO RESOLVE
DIFFERENCES REQUIRED

For discovery sanctions to be an effective tool, trial judges

should encourage lawyers to work out their differences before coming to court with discovery motions. In this way, judges can save
themselves a great deal of time. Supreme Court Rule 201(k) requires that lawyers incorporate into their discovery motions a
statement describing their attempts to resolve the dispute between
themselves. 23 The failure to facilitate discovery under this provision is itself subject to sanctions, including attorney's fees. In addition, judges should strictly enforce compliance with Supreme
Court Rule 201(k) before providing any relief under Supreme
Court Rule 219.24

In Williams v. A. E. Staley Manufacturing Co., the Illinois
Supreme Court emphasized the need for lawyers to adhere to Rule
201(k) requirements when requesting a court to impose a severe
sanction.25 In Williams, when the plaintiff refused to respond to
production requests and interrogatories, the defendant made a motion to dismiss for noncompliance 26 that did not meet Rule 201(k)
requirements. 27 The trial court vacated a previous order dismissing the plaintiff's action, but the appellate court reversed.2 8
The Illinois Supreme Court affirmed the trial court's decision because the defendant had ignored the requirements of Rule 201(k). 29
The court indicated that the more drastic the relief requested, the
more necessary it was for the moving party to comply with Rule
23. Rule 201(k) provides:
Every motion with respect to discovery shall incorporate a statement that after
personal consultation and reasonable attempts to resolve differences the parties
have been unable to reach an accord. The court may order that reasonable
costs, including attorneys' fees, be assessed against a party or his attorney who
unreasonably fails to facilitate discovery under this provision.
ILL. REV. STAT. ch. 110A, para. 201(k) (1991).
24. However, once the court has become involved in the litigation through the issuance of an order to compel discovery, no further compliance with Rule 201(k) is necessary. Gayton v. Levi, 496 N.E.2d 1045, 1048 (Ill. App. Ct. 1986).
25. 416 N.E.2d 252, 256 (Ill. 1981).
26. Id. at 253.
27. Id. at 256.
28. Id. at 253-54.
29. Id. at 256.

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19931

201(k).30
The Committee Comments to Rule 201(k) state that the rule is
"designed to curtail undue delay in the administration of justice
and to discourage motions of a routine nature. '3' Before Williams,
some courts interpreted the committee language to mean that there
was no need to comply with Rule 201(k) when the sanction for
failure to comply with discovery was dismissal, since dismissal was
not routine.3 2 In Williams, however, the supreme court stressed
the prophylactic purposes of the Rule. 3 Subsequently, appellate
courts have strictly enforced Rule 201(k) requirements.3 4
IV.

SANCTIONABLE CONDUCT

In determining whether to sanction a party or a party's attorney,
the trial court must decide whether the offender's noncompliance
with discovery rules and/or orders is "unreasonable.

' 35

Appellate

courts have not been consistent in determining what constitutes
unreasonable noncompliance. Moreover, though most courts base
their sanctions on the culpability of the transgressor, other courts
base them on the importance of the material withheld by the
transgressor.
A.

Willful Conduct

Most Illinois courts impose sanctions only when parties or attorneys abuse the discovery process through willful conduct. Courts
30. Williams, 416 N.E.2d at 256.
31. ILL. REV. STAT. ch. I1OA, para. 201(k) (1991) (Committee Comments).
32. Sanchez v. Phillips, 361 N.E.2d 36, 39 (I11.App. Ct. 1977) (because plaintiff's
motion to dismiss was not routine, defendant's failure to comply with Rule 201(k) was
harmless); Urmoneit v. Purves, 338 N.E.2d 423, 425 (Ill. App. Ct. 1975) (defendant's
motion to dismiss was not routine and therefore was not within Rule 201(k)).
33. Williams, 416 N.E.2d at 255 (disagreeing with the contention that "nonroutine"
motions requesting drastic relief were not within the purview of Rule 201(k) and stating
that "[t]o the contrary ... the more drastic the relief requested, the more necessary
compliance with Rule 201(k)").
34. See Keating v. Dominick's Finer Foods, Inc., 587 N.E.2d 57, 60 (Ill. App. Ct.
1992) (holding that since defendant's motion to dismiss for failure to respond to interrogatories did not include any evidence of attempts to obtain answers to its interrogatories,
the motion should have been denied); Brandt v. John S. Tilley Ladders Co., 495 N.E.2d
1269, 1271 (Ill. App. Ct. 1986) (reversing trial court's dismissal of plaintiff's complaint
because defendant's motion to dismiss did not include a statement of personal
consultation).
35. ILL. REV. STAT. ch. 1 10A, para. 219(c) (1991). In addition, Rule 219(a) provides
for the sanction of attorney's fees if a party's failure to respond to a discovery request is
"without substantial justification." This is a question of fact, with the burden of proof on
the complainant. The Illinois Supreme Court has not, as yet, defined "unreasonable refusal to comply." Id., para. 219(c).

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characterize "willfulness" as "deliberate and pronounced disregard
for the rule or order not complied with" 36 or "deliberate, contuma'3
cious or unwarranted disregard of the court's authority.
B. Negligent Conduct
In one case, dictum suggests that under some circumstances,
negligent misconduct might be sanctionable under Supreme Court
Rule 219. In White v. Henrotin HospitalCorp. 38 the plaintiff failed
to appear at a scheduled deposition because he had not been informed of the deposition by his attorneys. The appellate court held
that because the plaintiff's noncompliance was not contumacious,
the trial court abused its discretion in dismissing the case. 39 The

court added in dictum: "This is not to say that a lesser sanction
would not be appropriate."' °
The White court dictum is not characteristic of the approach
taken by most courts when they are faced with discovery noncompliance caused by negligence. Representative of the vast weight of
authority is B & Y Heavy Movers, Inc. v. Fluor Constructors,Inc. ,'"
in which the appellate court held that discovery sanctions were not
warranted when the plaintiff's failure to disclose the identity of a
witness prior to trial was inadvertent. 2
Thus, an attorney's negligent conduct will not suffice to warrant
the dismissal of a case. Ordinarily, a court will not characterize a
failure to comply with discovery requests as unreasonable unless
the failure is willful. This is consistent with the language of
36. Coils v. City of Chicago, 571 N.E.2d 951, 981 (Ill. App. Ct. 1991) (quoting King
v. American Food Equip. Co., 513 N.E.2d 958, 966 (111. App. Ct. 1987)); see also Palmer
v. Minor, 570 N.E.2d 774, 777 (Ill. App. Ct. 1991) (in a case in which the plaintiff perpetrated a "gross violation of the Rule," barring plaintiff's only witness from testifying was
appropriate); Lewis v. Cotton Belt Rte.-St. Louis SW. Ry., 576 N.E.2d 918, 929 (Ill. App.
Ct. 1991) (affirming trial court's refusal to order sanctions under Rule 219(c) because the
record was "devoid of any evidence that plaintiff's counsel contumaciously refused to
comply" with any pretrial discovery order).
37. 612 North Mich. Ave. Bldg. Corp. v. Factsystem, Inc. 340 N.E.2d 678, 682 (Ill.
App. Ct. 1975); see also In re Marriage of Glusek, 523 N.E.2d 126, 129 (Ill. App. Ct.
1988) (the defendant's "contumacious [and] unwarranted disregard of the court's authority" during discovery warranted trial court's striking of pleadings and barring of
testimony).
38. 398 N.E.2d 24 (Ill. App. Ct. 1979).
39. Id. at 28.
40. Id.; see also Wilkins v. T. Enters., Inc., 532 N.E.2d 469, 471 (Ill. App. Ct. 1988)
(holding that plaintiff's failure to answer nine interrogatories did not warrant dismissal of
the case and ordering the trial court to reinstate the case and give plaintiff additional
time to respond to the interrogatories).
41. 570 N.E.2d 777 (Ill. App. Ct. 1991).
42. Id. at 783.

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Supreme Court Rule 219

Supreme Court Rule 219(d), which only penalizes willful attempts
to obtain discovery information through improper means. 43 In extreme cases, however, a lesser sanction may be warranted, particularly if it is imposed on the attorney and not on the innocent client.
C. Importance of the Information Requested
Some courts have focused on the importance of the undisclosed
information rather than on the fault of the offending party.4 In
Ideal Plumbing Co. v. Shevlin-Manning, Inc., for example, the
court held that barring the party's exhibits was an appropriate discovery sanction for his failure to make the exhibits available before
trial.45 The court stated that whether a failure to disclose is unreasonable hinges on the importance of the undisclosed information
rather than on the intentions of the party who failed to disclose.46
Because the undisclosed documents were critical to the case, the
court held that the conduct was unreasonable. 4 The Ideal Plumbing court's reasoning suggests that when the withheld material is
important, the court may have to impose more severe sanctions to
enforce compliance. Nevertheless, the importance of the withheld
information should not determine whether sanctions are appropriate but only what type of sanction should be imposed.
D. Application of the "UnreasonableNoncompliance" Standard
Courts have applied the "unreasonable noncompliance" standard in different fashions. In Zimmer v. Melendez,S the court
found that noncompliance was not unreasonable when the plaintiff
failed to provide a specific, exhaustive answer to a general, openended interrogatory. 49 The plaintiff's noncompliance in Zimmer
43. ILL. REV. STAT. ch. lOA, para. 219(d) (1991).
App.
44. E.g. Ideal Plumbing Co. v. Shevlin-Manning, Inc., 421 N.E.2d 562, 565 (Ill.
Ct. 1981); see also Eisenbrandt v. Finnegan, 509 N.E.2d 1037, 1039 (Ill. App. Ct. 1987)
(plaintiff's delay in producing documents until four days before trial did not warrant
sanctions because the materials "were not so crucial or complicated as to prejudice the
defendant").
45. 421 N.E.2d at 565.
46. Id.
47. Id.
48. 583 N.E.2d 1158 (Il1. App. Ct. 1991).
49. The interrogatory asked for "any and all other expenses or losses you claim as a
result of said occurrence." Id. at 1162. Defendant contended that he was asking about
plaintiff's future medical treatment and expenses and specifically about the cost of surgery for rotator cuff repair. Plaintiffs thought this meant consequential damages, such as
hotel and meal expenses. Therefore, they did not give defendant the information from a
doctor's report that revealed the surgery would cost $5,000 to $6,000. Id.; see also Ford
v. City of Chicago, 476 N.E.2d 1232, 1238 (Ill. App. Ct. 1985) (holding that lapse of

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[Vol. 24

was due to a misunderstanding, which derived in part from the
defendant's vague interrogatory.50
In other cases, courts have held that outside factors may determine whether a party's failure to comply with a discovery request
is unreasonable. In Serpe v. Yellow Cab Co. ,51 for example, a defendant-employer's failure to comply with a court order to produce
an employee at a deposition was not unreasonable when the employer notified the employee of the order but the employee refused
to appear. There was no unreasonable noncompliance on the part
of the defendant-employer because under its labor contract, the
employer could not discharge the employee for refusal to attend
the deposition.52
In cases in which the discovery request is clear and the offending
party has given no valid excuse, the courts have found unreasonable noncompliance. 53 Courts have also found offers of partial compliance with discovery orders unreasonable when the party has had
54
ample time to comply.
E. Excuses for Noncompliance
Once failure to comply with a discovery rule or order has been
determined, the burden shifts to the offending party to tender a
justifiable excuse. 55 A common excuse is that the requested documents are not in the party's possession. If the documents are in the
hands of the party's attorney or another agent, this excuse will not
suffice. Under these circumstances the documents are considered
to be in the party's control and therefore subject to production.56
several weeks before defendant provided requested discovery information to the plaintiff,
although an indication of tardiness on the defendant's part, was not unreasonable
noncompliance).
50. Zimmer, 583 N.E.2d at 1162.
51. 293 N.E.2d 742, 744 (Ill. App. Ct. 1973).
52. Id.
53. See In re Marriage of Kutchins, 510 N.E.2d 1300, 1304 (Ill. App. Ct. 1987) (failure to submit to three court-ordered mental examinations constituted unreasonable
noncompliance).
54. See Servbest Foods, Inc. v. Emessee Indus., 403 N.E.2d 1 (Ill. App. Ct. 1980)
(finding defendant's three-year refusal to supply requested documents to be unreasonable
and holding that defendant's offer of partial compliance at trial did not render noncompliance any less unreasonable).
55. See, e.g., Kutchins, 510 N.E.2d at 1304 (rejecting offending party's argument that
scope of court order for mental exam was improper and noncompliance was therefore
justified).
56. See Hawkins v. Wiggins, 415 N.E.2d 1179, 1182 (Ill. App. Ct. 1980) (the fact that
tax returns were not in party's actual physical control did not excuse failure to comply
with request to produce since plaintiff had statutory right to inspect and reproduce copies
of tax record); cf. Vortanz v. Elmhurst Memorial Hosp., 534 N.E.2d 625, 630 (Ill. App.

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Supreme Court Rule 219
V.

WHO SHOULD BE SANCTIONED?

The language of Rule 219 does not give any specific guidance
concerning the person to be sanctioned for a discovery violation,
and the courts have offered little direction. 57 The wording is different in each section of Rule 219. Rule 219(a) reads: "[T]he court
shall require the offending party or deponent, or the party whose
attorney advised the conduct complained of, or either of them, to
pay . . . . '" Rule 219(b) states that the court may require "the
other party" to pay.5 9 Rule 219(c) states that "any person" who
unreasonably refuses to comply can be sanctioned.' ° Finally, Rule
219(d) states that "a party" who abuses discovery can be
sanctioned.61
Rule 219(c) is the section that is used most frequently for sanctioning discovery violations. It seems to be appropriate under this
section to sanction whoever is responsible for the failure to comply
with the discovery demand or order-the party or the attorney.
In the majority of cases in which the attorney is sanctioned, it is
obvious that the attorney has personally obstructed the discovery
process. For example, in Martzaklis v. 5559 Belmont Corp.,62 the
defendant's attorney had hired an investigator to coerce and manipulate witnesses.63 The court granted attorney's fees against the
defendant's attorney.' Logically, if an attorney advises a client
Ct. 1989) (lack of control over expert witness was a valid excuse for noncompliance when
expert failed to appear for deposition date set by court).
57. In Williams v. City of Chicago, 370 N.E.2d 119 (Ill. App. Ct. 1977), the trial
court ordered the defendants to pay plaintiff's attorney's fees for not answering interrogatories. The court gave no specific reasoning concerning how it determined whom to sanction. On the other hand, in Savitch v. Allman, 323 N.E.2d 435 (Ill. App. Ct. 1975), the
court imposed attorney's fees against plaintiff's attorney for unreasonable refusal to answer interrogatories. The facts seem to be similar in Savitch and Williams, yet the courts
were inconsistent in whom they sanctioned.
58.
59.
60.
61.

ILL.
ILL.
ILL.
ILL.

REV.
REV.
REV.
REV.

STAT.
STAT.
STAT.
STAT.

ch.
ch.
ch.
ch.

I10A, para.
ll0A, para.
I10A, para.
l10A, para.

219(a)
219(b)
219(c)
219(d)

(1991).
(1991).
(1991).
(1991).

62. 510 N.E.2d 1148 (Ill. App. Ct. 1987).
63. Id. at 1150.
64. Id. at 1152; see also American Directory Serv. Agency, Inc. v. Beam, 131 F.R.D.
15, 19 (D.D.C. 1990) (imposing sanctions against an attorney when the attorney advised
his clients to give no answer during depositions and frequently objected, thereby preventing any meaningful testimony from being given).
In Barker v. Bledsoe, 85 F.R.D. 545, 546 (W.D. Okla. 1979), plaintiff's answers to
interrogatories were late and were very vague when finally answered. These answers were
signed by plaintiff's counsel and verified by an associate. Id. The court questioned why
counsel did not verify his own signed answers. Id. at 549. Because counsel purposefully
concealed other facts, the court believed that counsel was also responsible for the paltry
interrogatory answers given. Id. In Smith v. Logansport Community School Corp., 139

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not to comply with discovery, the attorney, not the client, should
be sanctioned.
In a recent case, an appellate court held that attorney's fees were
to be paid by the plaintiff and his attorney.65 These sanctions were
imposed because of the plaintiff's repeated failure to appear at
scheduled depositions and his incomplete responses to requests to
produce.6 6 The court did not state what percentage each had to
pay and did not specifically allocate fault for each discovery
violation.
If fault is the basis for deciding whether it is the attorney or his
or her client who should be sanctioned, then the trial judge must
ascertain who is at fault. At a hearing on sanctions for discovery
violations, fault determination can create a problem if an attorney
blames the client for the noncompliance. This may result in the
lawyer having a conflict of interest, necessitating his or her withdrawal from the case. 67 In addition, at a hearing in which the client is not present, the judge may hear a one-sided version of the
events and impose a sanction that harms the client when the attorney was really to blame. At the recent Illinois Judicial Conference,
one judge recommended that both attorney and client be required
to attend the sanctions hearing. His experience had been that attorneys were much less likely to blame their clients when their clients were sitting next to them in the courtroom.
Although this approach may reduce the likelihood that attorneys will blame their clients for discovery violations for which they
themselves are responsible, such hearings may end up causing rifts
between attorneys and clients. An attorney might subtly try to
shift the blame to the client. Even if the attorney accepts the
blame, the client may feel that he or she has hired an incompetent
attorney. Also, in trying to defend themselves, attorneys may reF.R.D. 637 (N.D. Ind. 1991), plaintiff's counsel insisted on depositions being adjourned
prior to completion, interrogatory answers were evasive, and document-production requests were not fulfilled. Id. at 641-49. The court stated that the responsibility for the
discovery abuses rested solely upon plaintiff's counsel, and counsel was sanctioned. Id.
at 651. It appears that the noncompliance with the deposition would be counsel's fault.
However, not answering the interrogatories properly and not providing the requested
documents could also have been the plaintiff's fault.
65. Klairmont v. Elmhurst Radiologists, S.C., 558 N.E.2d 328, 332 (Ill. App. Ct.
1990).
66. Id.
67. See Alabama Ethics Opinion 87-156 (1987), summarized in ABA/BNA LAWYERS' MANUAL ON PROFESSIONAL CONDUCT ETHICS OPINIONS 1986-1990 901:1037

(requiring a lawyer to withdraw from the case if the client and lawyer blame each other,
unless the client consents to continued representation).

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veal client confidences.68 In order to avoid these problems, a judge
may schedule a hearing on the discovery dispute itself following a
motion by the affected party, but postpone a hearing on sanctions
until after the conclusion of the case. Then, any breakdown in the
attorney-client relationship will not adversely affect the client, at
least in that particular case. This approach has the drawback of
precluding the imposition of progressively severe sanctions as violations continue. Judges can try to delay hearings on sanctions, at
least initially, in the hope that discovery disputes will not continue.
If, however, a party or his or her attorney seems to be intransigent,
a hearing on sanctions may have to be scheduled earlier in the
proceeding.
A few Illinois courts have imposed attorney's fees against the
law firm representing the offending party.69 In Krasnow v.
Bender,7 ° at a pretrial conference the parties had agreed that the
plaintiff would be examined by a physician.7" On the advice of
counsel, the plaintiff refused to give her medical history when she
arrived for her appointment.12 It seems that it would have been
appropriate to sanction counsel, but without explanation, the court
sanctioned the law firm.73
In some cases, it may be necessary to sanction the law firm instead of the attorney who attends the discovery hearing. A few
large firms have used the ploy of sending a young associate with no
experience with the case to the sanctions hearing in the hope that
the judge will not impose a heavy sanction against somebody who
is not at fault. Under such circumstances, when the judge does not
know which attorney in the firm is to blame, it may be appropriate
to impose sanctions against the law firm itself, although Rule 219
68. The Illinois Rules and cases decided under the analogous provisions of the ABA
Model Rules permit attorneys to reveal confidences to the extent necessary to defend
themselves. See ILLINOIS RULES OF PROFESSIONAL CONDUCT Rule 1.6 (c)(3) ("A lawyer may use or reveal: . . . confidences or secrets necessary to establish or collect the
lawyer's fee or to defend the lawyer ...against an accusation of wrongful conduct."); cf.
Brandt v. Schal Associates, Inc., 121 F.R.D. 368, 385 n.48 (N.D. Ill. 1988) (stating that a
claim for sanctions under Rule 11 is an accusation of "wrongful conduct" giving a lawyer
the right to reveal confidences in self defense).
69. See, e.g., Krasnow v. Bender, 397 N.E.2d 1381, 1385 (Ill. 1979) (finding that
counsel's advice to plaintiff was unreasonable and deserving of a monetary sanction);
Transamerica Ins. Group v. Lee, 518 N.E.2d 413, 416 (Ill. App. Ct. 1987) (upholding the
imposition of a $5,000 sanction against the law firm representing the defendant).
70. 397 N.E.2d 1381 (Ill. 1979).
71. Id. at 1383.
72. Id.
73. Id. at 1385.

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does not expressly provide for sanctions against law firms.74
VI. APPROPRIATE SANCTIONS
After determining that discovery misconduct is sanctionable and
that a particular person should be sanctioned, a court must then
determine the appropriate sanction. Under Rule 219, the proper
sanction depends upon the facts of the particular case. Rule 219(c)
lists seven possible sanctions for failure to comply with a discovery
request or order: (1) staying the proceedings; (2) debarring a party
from filing any other pleading relating to any issue to which the
refusal to comply relates; (3) debarring a claim, counterclaim, third
party claim, or defense relating to the issue; (4) barring a witness
from testifying; (5) entering a default judgment as to a claim or
defense; (6) striking a portion of the pleadings; or (7) ordering the
offending party or his or her attorney to pay the reasonable expenses, including attorney's fees incurred as a result of the discovery misconduct. 75 This list is not exclusive. For example, though
not specified under Rule 219(c), unfavorable jury instructions and
the award of a new trial have been used as sanctions.76
With the exception of attorney's fees that the court directs the
client to pay, all the sanctions listed above will affect to some degree the way the case is viewed by the trier of fact. Therefore,
before imposing sanctions that will impede a party's ability to
prove or defend his or her case, the court must be sure that the
client is to blame for failure to comply with discovery. Certainly, if
a court bars a claim or precludes evidence because of discovery
abuse for which the attorney is found to be responsible, a malpractice claim may be brought against the attorney.77 It may be very
difficult, however, to value that claim. Ordinarily, in legal malpractice cases the jury must determine not only the value of the
case but also that the attorney's conduct was the proximate cause
or a substantial contributing cause of the harm. 78 When the attor74. Cf Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 127 (1990)
(holding only the signatory and not the law firm liable for violation of Rule 11 of the
Federal Rules of Civil Procedure).
75. ILL. REV. STAT. ch. ll0A, para. 219(c) (1991).
76. See, e.g., Buehler v. Whalen, 374 N.E.2d 460, 468 (Ill. 1977) (upholding severe
sanctions against the defendant, including a jury instruction "to the effect that unfavorable inferences could be drawn because of failure to produce documents" and for purposely lying and withholding vital discovery information); Drehle v. Fleming, 274 N.E.2d
53, 55 (Ill. 1971) (new trial warranted because defendant failed to comply with a document production request).
77. See, e.g., Fitzgerald v. Walker, 826 P.2d 1301, 1305 (Idaho 1992).
78. See Shehade v. Gerson, 500 N.E.2d 510, 512 (Ill. App. Ct. 1986).

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ney's conduct results in the preclusion of certain evidence, the jury
may find it difficult to ascertain whether the attorney's conduct
caused the case to be lost. 9 Problems of proximate cause and valuation do not exist if the offending individual is sanctioned with attorney's fees based on the amount of time he or she has needlessly
caused the other side to spend. Of course, if documents or other
information are never provided, attorney's fees alone will not constitute an adequate sanction, and a stiffer sanction may be
necessary.
A.

Attorney's Fees

Rule 219 and Rule 237 state that recoverable attorney's fees
must have been incurred as a result of misconduct or obtaining an
order. This gives the courts little direction for determining reasonable attorney's fees. Unfortunately, in determining attorney's fees
as sanctions, courts have not used a consistent formula, although
most of them have stated that the fees must relate to specific
misconduct.
In Dyduch v. Crystal Green Corp.,80 the trial court imposed all of
the costs and half of the attorney's fees as a sanction.8' The appellate court held that sanctions should not take the form of a monetary penalty. 2 The Dyduch court stated that it did not see how the
costs and fees related to the plaintiff's failure to answer interrogatories and therefore remanded the case to the trial court to determine what costs, if any, were directly related to the plaintiff's
failure to answer.13 This approach does not give any definite direction for determining the amount of attorney's fees; nevertheless, it
is consistent with the theory that the fees should be compensatory
rather than punitive in nature.8 4
Many courts have not used any specific formula to determine
79. See Leonard E. Gross, Suppression of Evidence as a Remedy for Attorney Misconduct: Shall the Sins of the Attorney Be Visited Upon the Client?, 54 ALB. L. REV. 437
(1990).
80. 582 N.E.2d 302 (Ill. App. Ct. 1991).
81. Id. at 306.
82. Id. at 307. But cf. Transamerica Ins. Group v. Lee, 518 N.E.2d 413, 415 (Ill.
App. Ct. 1987).
83. Dyduch, 582 N.E.2d at 307.
84. See Savitch v. Allman, 323 N.E.2d 435, 437 (Ill. App. Ct. 1975); see also Lynch
v. Mullenix, 363 N.E.2d 645, 647 (Ill. App. Ct. 1977) (interpreting Rule 219(a) to permit
imposition of fees when refusal was made without substantial justification); HumboldtArmitage Corp. v. Illinois Fair Plan Ass'n, 408 N.E.2d 307, 310 (Ill. App. Ct. 1980)
(finding that imposition of attorney's fees is appropriate when one party fails to comply
with discovery rules); Williams v. City of Chicago, 370 N.E.2d 119, 122 (Ill. App. Ct.
1977) (concluding that trial courts may not impose sanctions as punishment).

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attorney's fees but have estimated what they thought would be an
appropriate dollar amount. In Savitch v. Allman, 5 the defendant
served interrogatories on February 23, 1973, to be answered within
twenty-eight days. 6 No answers had been filed by the middle of
September. On September 18, 1973, the defendant's attorneys
wrote a letter to the plaintiff's attorney reminding him that answers were long overdue.8 7 Thirty days later, the interrogatories
had still not been answered, and on October 18, 1973, the defendant filed a motion for sanctions under Rule 2 19(c). 88 Two hearings

were postponed at the request of the plaintiff's attorney.8 9 After a
hearing on November 29, 1973, $160 in sanctions were imposed
against the plaintiff's counsel. 90 The Savitch court gave no reason
why $160 was the appropriate amount except to say that the defendant was required to pay that amount in additional attorney's
fees for the sole purpose of obtaining compliance with discovery
rules.91
Similarly, in Rush v. Leader Industries, Inc. ,92 the court determined that $1,000 was the appropriate sanction for the defendant's
failure to produce requested documents. 93 In Rush, the plaintiff
filed a notice to produce and subsequently wrote to the defendant
requesting these documents on four separate occasions. 94 During
this time, defendant submitted some but not all of the documents.9"
The plaintiff requested $1,500 in costs. 96 The trial court awarded

$1,000 in costs for the time attributable to the plaintiff's efforts
resulting from the defendant's noncompliance. 97 The appellate
court affirmed the award, holding that the estimate of ten hours of
effort at $100 per hour was related to the costs occasioned by defendant's noncompliance. 98 The Rush court did not articulate any
definite standard used in arriving at this amount, relying instead on
the trial judge's determination of a reasonable amount. 99
85.
86.
87.
88.
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
99.

323 N.E.2d 435 (Il1. App. Ct. 1975).
Id. at 437.
Id.
Id.
Id.
Savitch, 323 N.E.2d at 437.
Id. at 439.
531 N.E.2d 863 (Ill. App. Ct. 1988).
Id. at 864.
Id.
Id.
Id. at 866. This amount was based on a calculation of 15 hours at $100 per hour.
Rush, 531 N.E.2d at 864.
Id. at 866.
Id.; see also Wach v. Martin Varnish Co., 422 N.E.2d 172, 175 (Ill. App. Ct.

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The most objective approach to determining attorney's fees
would be for the trial judge to make an assessment of the amount
of time it would take a reasonable attorney to prepare the necessary moving papers and attend the hearing to obtain the wrongfully withheld discovery information. Then, the judge should
multiply the number of hours by a lodestar figure based on the
prevailing market rate charged by other attorneys in the area with
similar experience and background. 00
This was the approach taken in Martzaklis v. 5559 Belmont
Corp. 101 In Martzaklis, the appellate court held that the amount of
the fees should be based not on the number of pages of pleadings
produced but on the amount of time it took to investigate and respond to the noncompliance. 102 In that case, the defendant's attorney had hired an investigator to intimidate and coerce witnesses.° 3
The court granted the plaintiff's attorneys $10,347.50 in attorney's
fees."o The defendant's attorney contended that the time claimed
by the attorneys was excessive and that the motions and memoranda filed by the plaintiff, totaling only twenty-six pages, did not
justify the 211.25 hours billed by the plaintiff's attorneys. 10 5 The
appellate court upheld the award and stated that the trial court
had reviewed the pleadings, had reviewed the time records of counsel, and had heard testimony regarding the amount before concluding that the time claimed was necessary. 106

Of necessity, a trial judge must rely to some degree on his or her
own experience when determining the appropriate award for attorney's fees for discovery violations. However, to avoid reversal, the
judge should cite to time records, affidavits, testimony, or some
form of data to support the necessity and reasonableness of counsel
fees. The courts should base awards on more than the bare assertions of counsel regarding the amount of time spent and the value
198 1) (holding that the trial judge from his own observations and experiences could conclude that $1,000 was a reasonable fee for the attorney's services in attempting to enforce
discovery order).
100. See Altschuler v. Samsonite Corp., 109 F.R.D. 353, 358 n.4 (E.D.N.Y. 1986)
(accepting as appropriate the government attorney's request for compensation by multiplying the number of hours by the going hourly rate); Crawford v. American Fed'n of
Gov't Employees, 576 F. Supp. 812, 816 (D.D.C. 1983) (attorney's fees calculated by
multiplying the number of hours spent on discovery by the hourly rate of an attorney of
this specialty).
101. 510 N.E.2d 1148 (Ill. App. Ct. 1987).
102. Id. at 1152.
103. Id. at 1150.
104. Id.
105. Id. at 1152.
106. Martzaklis, 510 N.E.2d at 1152.

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of that time.1°7
B.

BarringEvidence

If a discovery violation is found to be the fault of a party and not
his or her attorney and if the award of attorney's fees does not
produce discovery or sufficiently compensate the victimized party,
the court should consider progressively stronger sanctions.108
These sanctions should correspond to the misconduct in question
and not constitute a penalty for failure to adhere to discovery rules.
Barring evidence is perhaps the least severe of the possible sanctions for discovery violations. It makes sense for the court to bar
evidence--or in extreme cases, to bar a claim-when a client deliberately refuses to provide information on a particular issue.1°9 For
example, the Illinois Supreme Court found that barring a defendant from maintaining a defense based on her mental condition was
a proper sanction for her refusal to comply with an order requiring
0
a mental examination."1
In determining whether the exclusion of evidence is a suitable
sanction, the overwhelming majority of Illinois courts have relied
on the following factors: (1) surprise to the adverse party; (2) prejudicial effect; (3) diligence of the adverse party; (4) timely objections; and (5) good faith of the offending party.11' In Ashford v.
Ziemann,"12 a paternity action, the plaintiff requested the defendant to disclose the names of any men who the defendant asserted
had had sexual intercourse with the plaintiff.11 3 The defendant did
not answer the interrogatory. 114 At trial, the defendant presented
107. Transamerica Ins. Group v. Lee, 518 N.E.2d 413, 418-19 (Ill. App. Ct. 1987)
(McMorrow, J., dissenting).
108. See, e.g., Suttles v. Vogel, 513 N.E.2d 563, 571 (Ill. App. Ct. 1987) (laypersons
might be required to pay costs when discovery violations are deliberate and repetitive);
Jaffe v. Fogelson, 485 N.E.2d 531, 533 (Ill. App. Ct. 1985) (a progression of the severity
of sanctions effectively promotes complete discovery and judicial efficiency).
109. See American Family Ins. Co. v. Village Pontiac GMC, Inc., 585 N.E.2d 1115,
1119-20 (Ill. App. Ct. 1992) (upholding trial court's decision for summary judgment
against plaintiff who intentionally allowed a material piece of evidence to be destroyed).
110. In re Estate of Stevenson, 256 N.E.2d 766, 769 (Ill. 1970).
111. See, e.g., Ashford v. Ziemann, 459 N.E.2d 940, 947 (Ill. 1984) (barring the testimony of a witness whose name was not furnished to the opposing party); Lindholm v.
Wilson, 554 N.E.2d 501, 503 (Ill. App. Ct. 1990) (same). In these cases, surprise refers to
the fact that the witness's name was not supplied. The prejudicial effect refers to the
effect on the opposing party if the witness testifies. The diligence refers to the offending
party's diligence in ascertaining the witness's name prior to trial. The timely objections
refers to the opposing party's objection to the witness's testimony.
112. 459 N.E.2d 940 (Ill. 1984).
113. Id. at 946.
114. Id.

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Supreme Court Rule 219

the testimony of a bartender who claimed to have had sexual intercourse with the plaintiff." 5 The trial court allowed this testimony,
but the appellate court held that in light of the defendant's failure
to answer the interrogatory, the trial court had erred in admitting
the evidence. 116 The Illinois Supreme Court affirmed the appellate
court ruling and granted a new trial." 7 The supreme court analyzed the five factors set forth above and concluded that the testimony should have been barred."'
Courts need to be very careful about barring evidence when the
party is not to blame for the discovery violation, particularly if
harm from the discovery violation can be ameliorated without affecting the trial or the merits of the case. In Palmerv. Minor," 9 a
personal injury action, the victim of an automobile accident was
barred from calling his only remaining witness, whose name he had
intentionally failed to disclose to his attorney until shortly before
trial. 120 The plaintiff's attorney allegedly had inadvertently failed
to reveal the name of the witness until several days later, on the
date trial was to begin, after the trial court had disqualified all of
the plaintiff's other occurrence witnesses.' 2' The appellate court
affirmed the trial court's ruling and held that the plaintiff's conduct was a gross violation of Supreme Court Rule 219, given that
the plaintiff and the witness lived together, the witness was present
at the scene of the accident, the plaintiff knew that she would be a
witness, and the plaintiff and the witness had discussed her role as
22
such.'
The trial court in Palmer clearly had the discretion to exclude
the testimony of the plaintiff's witness, but since the plaintiff's attorney was partially to blame for the delay in disclosure, a different
sanction might have been more appropriate. Since the judge had
already delayed the start of the trial to allow the witness to be deposed, no further delay would have resulted if the witness had been
allowed to testify. Perhaps it would have been more appropriate
for the court to order the plaintiff and his123attorney to pay for the
additional costs attributable to the delay.
115. Id. at 944.
116. Id. at 947.
117. Ashford, 459 N.E.2d at 949.
118. Id. at 948-49.
119. 570 N.E.2d 774 (Ill. App. Ct. 1991).
120. Id. at 776-77.
121. Id.at 775.
122. Id.at 776.
123. Cf United Excavating & Wrecking, Inc. v. J.L. Wroan & Sons, Inc., 356 N.E.2d
1160, 1163 (Ill. App. Ct. 1976) (award of attorney's fees was proper but dismissal was

 490

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[Vol. 24

In contrast with Palmer, courts have admitted evidence despite
a party's failure to comply with discovery requests when prejudice
and surprise to the adverse party were minimal. For example, in
In re Estate of Stuhlfauth, 4 the appellate court held that the trial
court had not abused its discretion in failing to bar the testimony
of an expert witness. 125 The attorney for the party seeking to introduce the testimony of the expert had failed to mention the expert's
name in response to a formal discovery request; but months before
trial he had orally identified the expert to opposing counsel in an
informal statement. 126 The court stated that it did not condone
violations of discovery rules, but that in this case, one of the purnot underposes of discovery rules-preventing surprise-was
27
mined by permitting the expert to testify.
C. Barring Claims or Defenses
The next sanction in order of severity is debarring claims or defenses. This sanction should be granted only when the party,
rather than his or her attorney, is to blame and only when barring
evidence does not provide sufficient deterrence. For example,
Campen v. Executive House Hotel, Inc. 128 involved an action for
personal injuries sustained by the plaintiff as a result of slipping
and falling on the floor of a hotel lobby. The hotel tried to raise the
defense that the sole cause of the injuries was the negligence of a
janitorial contractor. 29 During pretrial discovery, however, the
excessive when there was no indication that offending party had refused to, or would not,
comply with discovery deposition order); Schwartz v. Moats, 277 N.E.2d 529, 531 (111.
App. Ct. 1971) (reversing the trial court's order entering a default judgment, with directions to the trial court to determine the reasonable expenses and attorney's fees incurred
by defendants' failure to answer interrogatories).
124. 410 N.E.2d 1063 (Ill. App. Ct. 1980).
125. Id. at 1070.
126. Id. at 1069.
127. Id. at 1070; see also Zimmer v. Melendez, 583 N.E.2d 1158 (Ill. App. Ct. 1991).
In Zimmer, the trial court improperly barred evidence of future medical treatment and
expenses necessary to repair an injury to plaintiff's rotator cuff. Id. at 1162. Plaintiff had
not specified that amount in response to an interrogatory on consequential damages, but
did supply defendant with a report from plaintiff's doctor that rotator cuff surgery was
required. Id. The appellate court stated that the doctor's testimony at his evidence deposition on plaintiff's future treatment and expenses did not surprise defendant, and that
defendant could have discovered this evidence through a supplemental interrogatory or a
discovery deposition of the doctor. Id.; Blakely v. Johnson, 345 N.E.2d 814, 815 (Ill.
App. Ct. 1976) (holding that the trial court abused its discretion in barring plaintiff's
witness when plaintiff failed to list the witness's name in response to defendant's interrogatories, because plaintiff did not attempt to hide his witness, there was no surprise to
defendant, and because defendant had an opportunity to depose plaintiff's witness).
128. 434 N.E.2d 511, 513 (Ill. App. Ct. 1982).
129. Id. at 515, 521.

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hotel had wrongfully concealed the existence of the contractor, a
potential party.13 0 The appellate court held that barring the defense was proper.' 3 ' Because a sanction of barring the evidence of
the janitorial contractor's negligence might not have prevented the
defendant from continuing to blame the contractor, the appellate
court's decision to bar the defense was justified. Otherwise the defendant might have benefited from having concealed the
information.
D. Dismissal and Default Judgments
A dismissal or a default judgment is considered a drastic sanction by the courts. Therefore, courts will impose such sanctions
only as a last resort or when other enforcement powers at the
32
court's disposal have failed to advance litigation.
In Williams v. City of Chicago, 33 the trial court imposed sanctions of attorney's fees and a default judgment on the defendants
for failure to answer interrogatories. ' 34 The appellate court stated
that a default judgment is harsh and should not be invoked unless
the offending party's conduct is deliberate and contumacious. 135
Accordingly, the appellate court reversed, adding that a default
judgment should be used only as a last resort. 36 In this case, barring evidence or increasing attorney's fees might have been a more
appropriate sanction.
In Nehring v. First National Bank in DeKalb, 13 7 the appellate
court held that when a party's compliance with requests for production of documents was as complete as possible, a trial on the
merits could be achieved. 38 Although the party's prior refusal to
comply did warrant some sanctions, the belated compliance did
not warrant dismissal of the case. 139 Likewise, various courts have
stated that a severe sanction such as a dismissal or a default judgment should be vacated if the offending party has a legitimate excuse for noncompliance and shows a willingness to comply in the
future. Thus, in one case in which a party submitted answers to
130. Id. at 513.
131. Id. at 521.
132. E.g. Wegman v. Pratt, 579 N.E.2d 1035, 1041 (Il1. App. Ct. 1991); Wyrick v.
Time Chem., Inc., 548 N.E.2d 524, 526 (Ill.
App. Ct. 1989).
133. 370 N.E.2d 119 (I11.
App. Ct. 1977).
134. Id. at 121.
135. Id. at 122.
136. Id. at 122-23.
137. 493 N.E.2d 1119 (Ill. App. Ct. 1986).
138. Id. at 1125-26.
139. Id. at 1125.

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interrogatories thirty-five days after the court had entered a dismissal order, the court held that the plaintiff had demonstrated a willingness to comply with discovery rules and thus dismissal was no
longer warranted."
Because they want to have cases tried on their merits and not
concluded as a result of sanctions for discovery abuse, the overwhelming majority of courts hold that to warrant dismissal or default judgments, the offending party's conduct must display a
"deliberate, contumacious or unwarranted disregard for the court's
authority."14 ' Determining what constitutes deliberate or contumacious conduct has been a challenge for the Illinois courts.
Courts have examined the questions of whether the behavior has
been repeated and whether the party's deliberate conduct has made
it virtually impossible to conduct a trial on the merits. In Perimeter Exhibits, Ltd. v. Glenbard Molded Binder, Inc.,142 the trial
court struck the defendant's answer, thereby causing a default
judgment. 14 3 The defendant had been ordered to be available for a
deposition before the discovery cutoff date. 144 The defendant's
counsel had advised the plaintiff's counsel that he would get in
touch with him to set a date for the defendant's deposition.' 45 Subsequently, the defendant left town and did not return until two
days after the date set for trial. 146 The appellate court found that
140. Cook v. Schwab Rehabilitation, 395 N.E.2d 1100, 1102 (Ill. App. Ct. 1979); cf
George William Hoffman & Co. v. Capital Servs. Co., 428 N.E.2d 600, 605-06 (Ill. App.
Ct. 1981) (holding that defendant's claims of meritorious defenses were not a valid excuse
for failure to comply with discovery demands, and refusing to set aside default judgment
because defendants did not agree to comply with discovery demands in the future).
141. Perimeter Exhibits, Ltd. v. Glenbard Molded Binder, Inc., 461 N.E.2d 44, 52-53
(Ill. App. Ct. 1984); see also Illinois E.P.A. v. Celotex Corp., 522 N.E.2d 888, 892 (Ill.
App. Ct. 1988) (affirming the trial court's decision to bar certain of plaintiff's claims
because plaintiff "engaged in a pattern of dilatory response to hearing officer orders, unjustifiable cancellation of depositions, and engaged in an intentional pattern of refusal to
meet deadlines"); Wilkins v.T. Enters., Inc., 532 N.E.2d 469, 471 (111. App. Ct. 1988)
(holding that plaintiffs' conduct was not so contumacious as to warrant dismissal where
attorney for all plaintiffs in nine consolidated actions delayed for well over one year in
filing responses to 34 pages of discovery requests in several of the actions, because some of
the plaintiffs filed responses and the others manifested a willingness to comply with discovery); John Mathes & Assocs., Inc. v. Noel, 418 N.E.2d 1104, 1107 (Ill. App. Ct. 1981)
(holding that entry of default judgment was not abuse of trial court's discretion, where
defendant engaged in "a continuing series of delays which totally thwarted the discovery
process," despite being given "multiple opportunities over a period of nine months to
fulfill his discovery responsibilities").
142. 461 N.E.2d 44 (Ill. App. Ct. 1984).
143. Id. at 48.
144. Id. at 47-48.
145. Id. at 48.
146. Id.

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the sanctions imposed by the trial court were appropriate because
47
of the defendant's deliberate disregard of the court's authority.
In contrast, in Wyrick v. Time Chemical, Inc.,'48 the appellate
court held that dismissal was improper, even though the plaintiff
did not appear on eleven deposition dates. The court observed that
the plaintiff had complied with written discovery and that both
parties had agreed to the rescheduling of the deposition ten out of
the eleven times.' 4 9 Consequently, the court found no evidence of
deliberate, willful, or contumacious behavior by the plaintiff. 50
Likewise, in Schaefer v. Sippel,15 1 the court held that the plaintiff's inability to provide the name of his expert at a pretrial conference did not constitute the type of deliberate misconduct that
would justify a dismissal of his case pursuant to Rule 219(c). 52
The court distinguished between noncompliance and refusal to
comply, holding that
dismissal was proper only when a party re53
fuses to comply.

The five factors set forth by the Illinois Supreme Court in Ashford v. Ziemann, 15 4 to be used in determining whether evidence
should be barred, have also been used in determining whether dismissal is appropriate. In Vaughn v. Northwestern Memorial Hospital,"' a medical malpractice action was dismissed with prejudice
because the plaintiff's deposition had been continued seventeen
times and the plaintiff had failed to attend his deposition despite
56
being ordered by the court to complete oral discovery.
Although the Vaughn court mentioned the standard of "deliberate
and pronounced disregard for rules, orders and authority of the
court" used by other courts, the court appeared to rely on the Ash147. Perimeter, 461 N.E.2d at 52-53; see also Fine Arts Distribs. v. Hilton Hotel
Corp., 412 N.E.2d 608 (Ill. App. Ct. 1980). The Fine Arts court found dismissal with
prejudice to be appropriate when plaintiff delayed in responding to defendant's discovery
requests and a court order. Id. at 611. According to the court, these dilatory tactics,
combined with plaintiff's inability to explain the delays and refusal to fully cooperate,
amounted to contumacious behavior. Id.
148. 548 N.E.2d at 527.
149. Id. at 526.
150. Id. at 527.
151. 374 N.E.2d 1092 (Ill. App. Ct. 1978).
152. Id. at 1096-97.
153. Id.; see also Nehring, 493 N.E.2d at 1129 (finding dismissal not warranted, even
though plaintiff failed to comply with defendant's request for production of documents
for many months, during which time some of the requested documents were stolen).
154. 459 N.E.2d 940 (Ill. 1984); see also supra note 111 and accompanying text.
155. 569 N.E.2d 77 (Il1. App. Ct. 1991).
156. Id. at 78-79.

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[Vol. 24

ford factors in reviewing the trial court's dismissal.1 57 The court
concluded that dismissal did not constitute an abuse of discretion.""8 Since the plaintiff clearly had no one but himself to blame
for his repeated failure to attend his court-ordered depositions, the
court's action seems justified.
A number of courts have found conduct to be deliberate and
contumacious when the offense involved a violation of a court order, as opposed to failure to comply with a discovery rule.' 59 In
Simmons v. Shimek,'6 the appellate court specifically stated that
the plaintiff's failure to appear on two court-ordered deposition
dates was different from the situation in Gallo v. Henke,' 6 1 where
the plaintiff's failure to appear never occurred on a deposition date
set by the court. More recently, in Shapira v. Lutheran General
Hospital,16 a case was dismissed with prejudice when the plaintiff
failed to disclose an expert witness after he had been ordered to do
so on four different occasions. 63 The court, however, focused particularly on the plaintiff's disregard of court orders rather than on
his noncompliance with discovery rules.lM
There is no inherent reason for distinguishing compliance with
court orders from compliance with discovery rules. A court order,
however, may be more specific, or it may be the consequence of
repeated violations of discovery rules. In such circumstances, it
makes sense to treat recurrent violators of clear orders more
harshly than individuals who commit single violations of unclear
rules or orders.
Because discovery sanctions are not intended to be punitive, violations by minor parties are treated more leniently than violations
by adults. In Brandon v. DeBusk, 65 a father appearing for his mi66
nor children filed suit to recover damages for personal injuries.1
The trial court dismissed the action for noncompliance with discovery. 1 67 The appellate court held that when minors are involved,
however, a court should be even more reluctant to dismiss for failure to comply with discovery than in situations in which an adult
157.
158.
159.
160.
161.
162.
163.
164.
165.
166.
167.

Id. at 81.
Id.
See, e.g., PerimeterExhibits, 461 N.E.2d at 52; Fine Arts, 412 N.E.2d at 610.
488 N.E.2d 283, 285 (Ill. App. Ct. 1985).
436 N.E.2d 1068, 1072 (I1. App. Ct. 1982).
557 N.E.2d 351 (Ill. App. Ct. 1990).
Id. at 352-53, 356.
Id. at 356.
407 N.E.2d 193 (Ill. App. Ct. 1980).
Id. at 194.
Id. at 194-95.

 1993]

Supreme Court Rule 219

party's conduct is deliberate and contumacious. 168 Accordingly,
the appellate court held that alternative sanctions rather than dismissal were appropriate. 169 In sum, when minors are involved, alternative sanctions to dismissal should be vigorously pursued.17
Finally, when a court imposes the sanction of dismissal under
Supreme Court Rule 219, a party cannot then refile the action,
claiming an involuntary dismissal under Supreme Court Rule 273.
Dismissal as a sanction under Rule 219(c) is an adjudication on the
71
1

merits.

E.

Unfavorable Jury Instructions

A few courts condone giving the jury instructions that are unfavorable to the offending party. In Buehler v. Whalen, 72 for example, the Illinois Supreme Court held that the trial court properly
instructed the jury that unfavorable inferences could be drawn
from the defendant's failure to produce documents. 73 Such instructions can be particularly appropriate when one party's failure
to produce relevant documents makes it difficult for the party with
the burden of proof to prove his or her case.
VII.

CONCLUSION

The judicial system would run more smoothly if discovery disputes could be avoided entirely. Judges can pursue this goal in
several ways. First, judges should exercise strict control over their
dockets and push counsel for early trial dates. In this way, lawyers
will have less opportunity to become embroiled in discovery disputes over peripheral matters. Then, if discovery disputes arise,
judges should insist that lawyers comply with the "meet and confer
provisions" of Supreme Court Rule 201(k).
Judges should resolve only disputes that the attorneys cannot
resolve. At a recent Illinois Judicial Conference, Judge Willard
Lassers recommended that after ruling on a discovery dispute, the
judge should set a time for the information to be produced and
require counsel to return on a set date to advise him or her whether
168. Id. at 195.
169. Id. at 195-96.
170. Brandon, 407 N.E.2d at 195.
171. Sjostrom v. McMurray, 362 N.E.2d 744, 748 (Ill. App. Ct. 1977); Heizman v.
City of Chicago, 320 N.E.2d 121, 123 (Ill. App. Ct. 1974).
172. 374 N.E.2d 460 (Ill. 1977).
173. Id. at 468; see also LeMaster v. Chicago Rock Island & Pac. R.R. Co., 343
N.E.2d 65, 75 (Ill. App. Ct. 1976) (holding that the trial court did not abuse its discretion
by permitting the jury to consider as evidence a party's inadequate disclosure).

 496

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the discovery order has been complied with. This requirement,
Judge Lassers argued, will reduce subsequent disputes over the refusal to turn over documents that the court has previously ordered
to be produced.
To determine whether sanctions are appropriate, the judge
should ascertain whether the party or attorney has willfully violated the discovery rules or has shown a willingness to cooperate.
Any sanctions should be imposed on the individual responsible for
the noncompliance. Any sanction should be commensurate with
the offense and designed not to punish but to facilitate the continuation of the trial on its merits.