IL App 2nd

Broad Discovery Permitted of Experts Retained by Insurer

The Illinois Appellate Court for the Second District, in an opinion written by Justice Zenoff with Justices Jorgensen and Schostok concurring, applying Illinois law, upheld the trial court’s discovery order directing defendant Allison Rancour to produce documents relating to two controlled expert witnesses retained by her insurer, State Farm Insurance Company (“State Farm”). Ms. Rancour was ordered to furnish information as to her controlled expert witnesses’ previous work for State Farm, State Farm’s in-house counsel, Bruce Farrel Dorn & Associates (“Bruce Farrel & Associates”), as well as Contemnor, Lucas, Olness & Associates, Ltd. (“Lucas Ltd.”)—outside counsel appointed by State Farm to defend Ms. Rancour. The appellate court affirmed on the basis that a party has reasonable control over the documents possessed by its insurer.

Plaintiffs Eric and Christine Grant filed a five-count complaint against Ms. Rancour stemming from a car accident. Ms. Rancour disclosed two controlled expert witnesses, pursuant to Illinois Supreme Court Rule 213(f)(3), Dr. Goldberg and Dr. Musacchio. The Grants served Ms. Rancour with interrogatories seeking, among other things, information regarding the doctors work as controlled experts on behalf of (1) Lucas Ltd.; (2) State Farm, and (3) State Farm’s in-house counsel, Bruce Farrel & Associates.

Lucas Ltd., counsel for Ms. Rancour, responded as to Dr. Goldberg’s work for their firm, but not as to Dr. Goldberg’s work for State Farm or Bruce Farrel & Associates. The Grants subsequently filed a motion to compel written discovery concerning Drs. Goldberg and Musacchio, alleging that Ms. Rancor provided incomplete and deficient answers because she failed to fully disclose information about the doctors’ work as expert witnesses for State Farm outside of what they did for Lucas Ltd.

At the hearing on the motion to compel discovery, Lucas Ltd. argued that it could not provide the requested discovery because it was State Farm’s outside counsel and had no control over State Farm or Bruce Farrel & Associates. However, in a written order the trial court specified that “[d]efendant, her attorneys and insurer shall fully respond to interrogatory and production requests” regarding the legal and consulting work performed by Drs. Goldberg and Musacchio for Lucas [Ltd.], State Farm, and Bruce Farrel [& Associates] between 2016 and 2019, along with disclosures of the compensation received for such work. The trial court noted that “[i]t is not necessary to separately subpoena State Farm (or Bruce Farrell [sic] Firm, provided said firm members are employees of State Farm).”

Ms. Rancour refused to provide the requested information related to State Farm and Bruce Farrel & Associates, repeating her previous objections, stressing that Lucas Ltd. is “neither an employee of nor in-house counsel for State Farm, that State Farm and Bruce Farrel [& Associates] were nonparties, and that the proper procedure to procure documents from nonparties was through a subpoena.”

The Grants filed a motion for sanctions, alleging that Ms. Rancour willfully refused to comply with and deliberately ignored the trial court’s order. Ultimately, the trial court found Lucas Ltd. in contempt of court and ordered that it pay a fine of $25 per day for failing to comply with its orders.

Lucas Ltd. appealed, making three arguments: “(1) the trial court had no personal jurisdiction over State Farm or Bruce Farrel [& Associates], and thus its order compelling the production of documents from those entities was void; (2) even if the discovery order was not void, the court abused its discretion in granting the motions to compel, and defendant complied in good faith with all discovery requirements under Illinois Supreme Court Rule 201 (eff. July 1, 2014); and (3) Lucas [Ltd.]’s noncompliance with the discovery order was based on a good-faith effort to secure an interpretation of an issue that would serve defendant and the court, and, therefore, the contempt finding should not stand.”

The appellate court noted that “[d]iscovery is intended to be a cooperative undertaking by counsel and the parties” –it should facilitate comity between parties. While acknowledging that discovery is not a “free for all,” the appellate court held that the Grants are entitled to information that will allow for a reasonable cross examination as to potential biases of expert witnesses. Ms. Rancour failed to take any action whatsoever to comply with the court’s order. Thus, the appellate court affirmed the trial court’s order requiring Ms. Rancour, her attorneys, and State Farm, to fully respond to the interrogatory and production requests. Grant v. Rancour, 2020 IL App (2d) 190802 (June 12, 2020).