In a medical malpractice case with a long and complex procedural history, including an imposition of sanctions and an order of friendly contempt, the Illinois Court of Appeals was asked to reverse the contempt order:

“We start” the Court began its analysis “by examining how the unusual procedural history underlying this appeal confines and directs our review. In their briefs, the parties discuss at length the trial court’s January 18, 2022 order imposing sanctions for discovery violations and its December 29, 2022 order denying Rush’s motion to reconsider the original sanctions order. The content of those orders gives essential context for the legal questions before us. But at the same time, this is not an appeal from either of those orders. Indeed, those two orders no longer have any legal effect. At the direction of the supreme court, the trial court vacated the January 18, 2022 sanctions order. When the court vacated the original sanctions order, it restored the parties to the position they were in before its entry.  That status quo ante was a pending decision on Prieto’s fully briefed motion for sanctions. Then, upon vacating the original sanctions order, the court immediately held Rush in friendly civil contempt and imposed a purgeable penalty of $50. Effectively, that became the court’s ruling on Prieto’s motion for sanctions. That friendly contempt finding, moreover, was fundamentally inconsistent with the original sanctions order. The original sanction — striking Rush’s answer and entering judgment against it as to liability — appears to have been meant to punish misconduct. A friendly contempt finding, by contrast, presupposes that the contemnor’s actions were taken in good faith. When it directed the trial court to find Rush in friendly contempt, the supreme court was implicitly repudiating the findings of bad faith that the original sanction was largely based on. Furthermore, civil contempt is designed to compel compliance with the court’s orders, not to punish past misconduct. Any order of coercive civil contempt is founded upon the contemnor’s ongoing refusal to comply with some order of the court. So the question before us is not whether the original sanction was justified or even whether Rush engaged in conduct warranting a punitive sanction — it is whether it was proper for the trial court to find that Rush was still in a state of noncompliance with the court’s discovery orders.”

Significantly, the Court notes that:

“A party that neither produces responsive material nor objects to its production is, in effect, saying that there is no material to produce. Rush’s view seems to be that it is entitled to silently withhold responsive documentation — to act as though it does not exist — unless and until the opposing party manages to see through the ruse. It should go without saying, but discovery is not a game. It is a mechanism for the ascertainment of truth, for the purpose of promoting either a fair settlement or a fair trial. Between Rush’s apparent concession that Prieto is entitled to the Cerner records and the uncontested fact that Rush did not produce those records, the trial court’s finding that Rush violated the discovery rules by not producing the Cerner records was beyond reasonable.”

Nevertheless:

“It does not follow that Rush’s disregard of its discovery obligations justifies a finding of contempt at this juncture. The issue with the Cerner records was first raised in Prieto’s response to Rush’s motion to reconsider the sanctions order. Rush has consistently represented that it stands ready to produce those documents once discovery is open again. We trust that, on remand, Rush will follow through on that commitment. If it fails to do so, the trial court will undoubtedly take whatever steps it determines are appropriate in light of the discovery rules and the court’s own inherent authority.”

 

Meherg v. Rush Medical Center, No.23-1102, 2025 WL 1531281 (Ill. App. 1st Dist. May 29, 2025).