Reyes v. Menards, Inc., 2012 IL A00 (1st) 112555 (Gordon)
Facts: Plaintiff was injured in a slip and fall incident at Menard’s. Plaintiff initially failed to answer discovery and an order was entered requiring her to complete written interrogatories by February 24, 2011 and present for a deposition by March 24, 2011. The order had self-executing sanction language that “the failure to comply with the specific terms of the order will result in the plaintiff being barred from testifying and presenting evidence at the arbitration and/or trial of this matter” and “(t)he above stated sanction shall remain in effect until removed by Order of Court upon motion by the party against whom the sanction applies.” The plaintiff filed her written discovery 1 week late and presented for deposition within the time frame of the order. Plaintiff’s counsel, however, did not seek leave of court to file the written discovery late and never moved to have the order vacated prior to the arbitration. Plaintiff then appeared at the arbitration with her attorney and an interpreter prepared to present evidence in support of her claim. Defendant’s attorney presented the panel with the order and requested that the plaintiff be barred from presenting evidence, which the did. The arbitrators found in favor of the defendant and awarded $433.00 against the plaintiff for defendant’s costs, but specifically found that plaintiff had participated in good faith. After the arbitration, plaintiff filed a rejection of the award and moved to have the discovery sanction order vacated. Defendant moved to debar the rejection. At the hearing, plaintiff’s counsel indicated to the judge somehow that she had not moved to vacate the order prior to the arbitration as matter of choice (which is not further elaborated upon in the opinion) and as a result the trial court determined that the plaintiff’s participation at arbitration was in bad faith and granted the defendant’s motion.
Holding: Trial court abused its discretion in entering an order debarring rejection of award by plaintiff based upon non-compliance with self-executing discovery sanction where arbitrators found plaintiff to have participated in good faith and discovery was filed one week late, despite the failure of plaintiff to seek leave of court to file late discovery or move to vacate the sanction order.
Filed in Trial Book Under: Mandatory Arbitration – Rejection of Award; Discovery Sanction
Commentary: There is no question that the plaintiff’s attorney made a mistake here in not moving for leave to file the discovery late and to vacate the order once she complied with the discovery. I can’t tell from this opinion exactly what she said to the judge about her ‘deliberate choice’ to not vacate the order, but it clearly didn’t fly and seemed to have clouded the court’s judgment. It was the plaintiff’s attorney that was in the wrong and not the plaintiff. Therefore, the approach suggested by the appellate court of sanctions against the attorney seems like a much better way to deal with this issue, rather than the party having to bear the consequences of the misjudgment of her attorney. I also completely agree with the special concurring opinion that self-executing discovery sanction orders are ineffective and contrary to the rules governing arbitration. The six-factor analysis required by Shimanovsky to determine the appropriate sanction simply cannot be done prospectively. It must be done with contemplation of the reasons for non-compliance so that the sanction is consistent with the conduct. The one-size fits all approach of the self-executing order acts as a death penalty for a claim prior to the arbitration and bears no relation to the party’s conduct at the arbitration itself. This simply is not fair and in my opinion should be a practice that is put to rest once and for all.