Profesco Corp. v. Dehm

553 N.E.2d 101, 196 Ill. App. 3d 127, 142 Ill. Dec. 751, 1990 Ill. App. LEXIS 467
CourtAppellate Court of Illinois
DecidedApril 5, 1990
Docket4-89-0665
StatusPublished
Cited by10 cases

This text of 553 N.E.2d 101 (Profesco Corp. v. Dehm) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Profesco Corp. v. Dehm, 553 N.E.2d 101, 196 Ill. App. 3d 127, 142 Ill. Dec. 751, 1990 Ill. App. LEXIS 467 (Ill. Ct. App. 1990).

Opinions

JUSTICE STEIGMANN

delivered the opinion of the court:

In May 1988, Profesco Corporation brought suit against Marilyn Dehm, seeking $2,374.68 plus costs and attorney fees and claiming that she owed Profesco money pursuant to a note she allegedly signed. Profesco claimed Dehm owed this sum as a result of a premium finance agreement. Dehm answered the complaint by denying the allegations. She also asserted as an affirmative defense that the note did not contain her signature.

Dehm later filed a counterclaim against Profesco seeking damages under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 1211/2, par. 262 et seq.). In her counterclaim, Dehm alleged that the premium finance agreement was forged. Shortly thereafter, Dehm subpoenaed Charles Mitchell and Joseph Catherine, employees of John Hancock Life Insurance Company (Hancock), for deposition. (Hereafter, Mitchell, Catherine, and Hancock will be referred to as appellants.) The subpoena also required Mitchell and Catherine to produce certain documents of Hancock’s investigative department.

With regard to one of the documents — a two-page report of Hancock’s department of special activities — appellants refused to comply with the subpoena and filed several motions for protective relief, contending that the document in question was protected under the work-product doctrine. After an in camera inspection, the trial court ruled that while page one and the last paragraph of page two were protected under the work-product doctrine, the remainder of the document was not protected and was required to be produced. Appellants’ attorney, David Novotny, then asked the trial court to enter an order of contempt so appellants could appeal the ruling as to the discoverability of the document. In response, the trial court held appellants’ attorney in contempt of court and fined him $100 a day until the discovery order was complied with. This order is also before us on appeal.

Appellants first argue that the trial court erred in ordering the production of portions of the department of special activities report because it is privileged communications under the work-product doctrine.

It is well settled that pretrial discovery orders will not be interfered with on appeal in the absence of a manifest abuse of discretion affirmatively and clearly shown by the appellant. (Snyder v. Lowrey (1986), 141 Ill. App. 3d 30, 32-33, 489 N.E.2d 899, 901.) Because wide discretionary power rests in the trial court regarding pretrial discovery matters, appellants have the burden of showing that there has been a clear abuse of discretion. (City of North Chicago v. North Chicago News, Inc. (1982), 106 Ill. App. 3d 587, 593, 435 N.E.2d 887, 891; Bicek v. Quitter (1976), 38 Ill. App. 3d 1027, 1030, 350 N.E.2d 125, 127.) Here, we find no such abuse.

In Illinois, the work-product doctrine is found in Illinois Supreme Court Rule 201(b)(2) (107 Ill. 2d R. 201(b)(2)), which in pertinent part states the following:

“Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” 107 Ill. 2d R. 201(b)(2).

In the present case, the first two paragraphs of the document at issue contain hearsay allegations that the insurance agent who wrote the policy being investigated has had several complaints made against him. The third paragraph of the document at issue relates to the company’s ability to obtain access to information concerning this individual through its internal computer system.

We have evaluated these paragraphs in light of the criteria for determining whether they are work-product as discussed in Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 432 N.E.2d 250. We conclude that they do not “ ‘ “reveal the shaping process by which the attorney[s] [have] arranged the available evidence for use in trial as dictated by [their] training and experience” ’ (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 359[, 221 N.E.2d 410, 416]) [which would] therefore entitlef] [them] to protection.” Consolidation Coal, 89 Ill. 2d at 110, 432 N.E.2d at 253.

While this information was obviously gathered for the purpose of litigation (albeit not this litigation), the subject matter of the three paragraphs in question does not remotely contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney as required by Rule 201(b)(2). Accordingly, these three paragraphs, attached to this opinion as an appendix, are discoverable.

Appellants next argue that the trial court erred when it fined their attorney $100 a day until he complied with the discovery order. Specifically, appellants argue that the fine should be vacated in light of the fact that appellants’ attorney asked the trial court to enter an order of contempt against him so that he could bring a good-faith appeal of the trial court’s discovery order.

In their brief, appellants argue that Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 522 N.E.2d 273, Pemberton v. Tieman (1983), 117 Ill. App. 3d 502, 453 N.E.2d 802, Bicek (38 Ill. App. 3d 1027, 350 N.E.2d 125), and Consolidation Coal (89 Ill. 2d 103, 432 N.E.2d 250), support the proposition that contempt and fine orders imposed against a good-faith noncomplying party should be vacated if the discovery order is reversed on appeal, or if the noncomplying party is found to be in good faith. This argument, however, presumes the trial court is in agreement with the appellants’ good-faith claims. That the appellants’ attorney asked to be held in contempt so that he might bring this appeal in no way supports the notion that he would not have been held in contempt had he not requested that finding. On the record before us, we think it likely that appellants’ attorney would have been held in contempt once he refused to present the document in question, whether he asked for that finding or not. Our assessment is based in part on the fact that after appellant’s attorney was held in contempt with a $100 fine per day imposed, he asked the trial court to vacate the fine. The trial court refused.

In Fine Arts Distributors v. Hilton Hotel Corp. (1980), 89 Ill. App. 3d 881, 412 N.E.2d 608

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Profesco Corp. v. Dehm
553 N.E.2d 101 (Appellate Court of Illinois, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
553 N.E.2d 101, 196 Ill. App. 3d 127, 142 Ill. Dec. 751, 1990 Ill. App. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/profesco-corp-v-dehm-illappct-1990.