thank you very much good morning counsel good morning fellow justices this is katherine's enough speaking counselor i'd like to thank you on behalf of the panel for being available to proceed with oral argument remotely today before we begin just a word or two regarding our format just as if you were in the courthouse in elgin you will each have up to fifteen minutes for your arguments appellant will also have up to five minutes court rebuttal as you heard mr kaplan has a buzzer or chime or he will operate and let you know when your time you do not have to use all the time allotted i would like to remind you that as is the practice of the nd appellate district we have all read through three ahead of time what will be different this morning is that we will not interrupt your argument with our questions as we usually do we felt that since this is being done remotely it really would be too difficult to proceed in that manner so we will save our questions for each of you until you have completed is about whether a court can order non parties to a case to produce documents and the answer discovery without st obtaining personal jurisdiction over them it is about due process of law in this case the lower court did just that and the contempt or appellant therefore respectfully request this court reversed and vacate the lower court your honour's this matter arises out of a personal injury matter which occurred after a motor vehicle accident on august th and thirteen the plaintiffs in this case it's claim to sustain various bodily injuries incurred medical expenses and also claim they will require future care as a result of that injury because of prior medical histories and disputed causation issues the defense retained orthopedic and nerve surgical experts the plaintiff served written discovery requests pertaining to the defendant's expert witnesses to the defendant plain also sought through these discovery requests served upon defendant allison ram corps to obtain answers to iraq and tories and documents and to nonparty state farm  defendant's auto insurance carrier and one of their in house employer law firms bruce farrell dorn law firm lucas almost an associates is an independent law firm we are not is undisputed that the plaintiffs never served subpoenas for production of documents upon either state farm or perhaps federal don't want with regard to the standard of review in this case jurisdiction over a party or a witness to a case is a question of law which is reviewed did no vote in my argument i will speak  th twenty one team was void secondly any orders granting sanctions or contend against the defendant or for willfully violating an order which was void to begin with and not stand in this case the contempt orders require a review of the orders upon which the contempt order was days that would include the february provide documentation as to financial compensation of two experts who had been retained by the defendant the the underlying or the lower court did not have personal jurisdiction over either entity why they were never served good process a subpoena the mere knowledge that a lawsuit or an antagonistic motion is preceding is not a substitute for service a process in this insurance in which to defend its insured pursuant to the contract of insurance the insured has with state farm insurance however the defendant's law firm lu associates also has other clients that we represent we have represented insureds from another insurance company we have represented transportation carriers we are not an employee of state farm insurance therefore we do not have within our control documents that state farm insurance as the corporation  case cited in our brief stands for if there is no personal jurisdiction any order that is entered is void and may be attacked at any time pelosi has argued that the defense had waived the issue of personal jurisdiction claiming that the issue was never raised in the underlying proceeding that is untrue defense where is the issue of personal jurisdiction in written an oral argument and additionally as i indicated whether a court had personal jurisdiction over a party is an issue which may be attacked at any time law firm lucas all know some associates law firm did receive ten reports which were voluntarily produced by state farm insurance during the course of counsel reported on the status of the which would include the party counsel and their insurer however this speaks to an certain request to admit based on the information as to deposition or production of documents and thus the court would have had jurisdiction the trial court in this case indicated that it may give a jury instruction parties i would submit that you could also find that the trial court abused its discretion when it entered the  the order of sanctions against defendant for willful willfully not complying with the order for some of the reasons that i stated earlier that we are not we are not employees or we have no control over state farm insurance or this other law firm and so even if you found that there was jurisdiction i would see that the discretion do you believe that the order was directed to state farm or was directed to lucas i believe that the order was directed to the if you're referring you referring to the february th twenty one to notice the original order yes i believe that and the court has the power to order lucas correct yes that's correct i have no further questions thank you just  you is there any difference in discovery between the request to admit and the request to produce yes your honor there is a difference in a request to produce to respond to those if they don't they're subject to motions and they have to produce the party must produce documents within their control or custody sixteen i think as i was indicating earlier requires one to make a reasonable inquiry into information in answering requests that would be admissions to taylor or narrow issues for the trial no ability to acquire this knowledge from state farm  as far as producing documents reports invoices and that type of thing for for other cases and  other involving other parties we would not have any ability to compel them to produce those documents but the court has the ability to compel you to produce those documents correct yes if they are in my custody or control right and if you can ask for that information from them would that not be in your control well i think that whether or not it's in my control would require looking at whether or not i can compel someone to produce documents or whether they would have to respond to that they often we have had to say issued subpoenas to state farm for documents pertaining to the property damage and they will not voluntarily produce something unless there is a did you offer did you ask him to produce in this case or did you just proceed with the kid friendly contempt buying i reporters on the on the status of litigation condemn and then proceeded with the friendly differences and you gave us you gave her an answer to that question but isn't that isn't the difference really without any distinction here because both of these key cases above fifty and old they both hold that a party has reasonable control over and sure the information it possesses and your position is that these two cases really don't apply here because they are confined to rule two hundred and sixteen motions to admit but how can a party have control over a document for purposes of rule two hundred and sixteen but not control over that same document regarding the two hundred and fourteen requests to produce well your honor i believe that the the difference in supreme court rule t as counsel to demand that an insurance company produce documents by virtue of what they do in the industry and how many medical bills and such that they see they would have some reasonable knowledge as to what might be a reasonable bill amount plaintiff would not have to bring in foundational experts to make a trial a lot longer and reduce some of the time in the issues for the trial i think that is different than any two hundred and fourteen requests to produce in this case where normally subpoenas are issued for production of documents or to require someone to submit to a deposition and i think that's the difference between two hundred and fourteen to sixteen and that so so we saw that state farm did voluntarily submit some reports to the court at a later point how did that not constitute a waiver of service of process that indicates that the mere knowledge of a lawsuit or an antagonistic motion is not a substitute for service of process and in this case in the court's order required production of documents from two non parties state farm insurance to service a process or or a waiver of notice you have to give proper notice and service a process in order for  i don't i think that just offering some documents without without being properly within the case does not constitute a waiver of service of process brief that the contempt order was entered only so that you could appeal the discovery order and that you did not willfully disregard the court's order defendant i'm sorry i think you did well i'm not sure but at any rate my question is did you not we few this even approach state farm and attempt to comply with the discovery order although you indicated today that you believe the discovery order was directed at your law for and since you didn't even approach state for well your honor without getting into you know conversations that there could be privileged communication  i reported on the status of the litigation and it's my position that  court whether or not i i haff them to produce anything they produce they did voluntarily produce some ten reports but that was not that was not something that i requested that they produce a report on the status of the status of the litigation and did not request those they came to me in your brief you indicate that the defendant was sanctioned for not producing documents not within her control but don't these orders reflect defendant was not sanction for not producing but for refusing to make an effort to comply with the discovery order that what the thrust of the trial court's orders were given the fact that the trial court clarify the meaning of the orders at least on one if and gave additional time for compliance well your honor i think that that's true that the court's order was  was entered with the sanctions that are on the basis that the defense will fully did not comply with the order however as i indicated in my argument in the lower court with respect to what the defendant was able to do and what we had within our custody control we made substantial disclosures and supplemental disclosures of a lot of information to the plaintiff and the lower court even indicated that they reviewed everything we had made they had substantial information with which to cross examine the experts it's the underlying order was void for a lot of your fiction then i would submit that it was not willfulness on the part of the defendant to not produce documents that we had no control or ability to procedural rules and also to empower the court to whole purpose of rules to sixteen is accomplished the party has the good faith obligation to make a reasonable effort to secure answers to requests to events from persons and documents within the responding parties reasonable practice of the travel turning from the court of illinois pertain to persons and documents we believe that the trial court yashin appropriate remedy to to the breach involved here  consistent with this situation in this situation and we have a d clue should between state farm and the descendants attorney the defendants did not produce any of the underlying documentation all the defendants provided prior to the actor goldberg's deposition in reports that is the basis of the judge judge's ruling that the production of those shii and records that say as a spy hearing the july questions here's my question you know you're you are premised on the proposition that the defendant has reasonable control over both state farm and the employee f documents so my question is what is reasonable control and what is a reasonable effort by defendant to to obtain the documents from state farm and or the firm the i think the the court hearing testimony has made it abundantly clear that no effort was made to request him think from state farm  in and they did produce them in this in this case all right but hold on just a nd state farm produced something doesn't that makes negate your argument that defend here did nothing because whatever conversations went on are clearly outside of our record here but what i have is defendants who was told to get certain documents those documents are tendered so there must have the heart of my question where do we draw the line and reasonable effort like the court says i want to napa david a firm doesn't want to give you an affidavit at what point have we accomplished or has a any defendant accomplished reasonable discretion correct correct how about if we were reviewing the correctness of the ruling of the trial court judgement would that not be  if we were reviewing the correctness of the ruling of the trial court would that be did know bo numbers of the cases the county says cases the the amount of compensation your opponent indicated that that was basically from what i can understand she said with a hardship the court i believe you said it was page three hundred and forty nine i didn't quite catch the page number but yes my my question is and in that quote there was a reference to compliance by state farm why did you not just go ahead and serve subpoenas on state farm and bruce sparrow as that is the traditional method of obtaining discovery from non parties is that not or was shown the question can you repeat it please or the traditional method of obtaining discovery from non parties is to issue a subpoena why did you not go ahead and serve ok is there any evidence in the records that lucas oldness actively colluded with state term the the only evidence that  that the trial court indicated i believe it was not july th that you had been provided with a substantial amount of cross examination material isn't that correct it is true those that we period well well you describe what you received some material i believe that would be appropriate for cross examination in point of fact to use me the trial reading of it indicates that the court said well plaintiffs should have received what the court ordered plaintiff has a substantial amount of cross examination material so the  allowing fees and costs and did make that statement and believe that there was a substantial amount of cross examination of material provided one should want to agree with i don't have any other questions so at this point ms owners you have time for thank you your honor sir i i will start out by by saying that in terms of the question to pla f why did they not just serve subpoenas to state farm and bruce farrel dorn as non parties as your honor noted that is a traditional form of requesting discovery from non parties if that had been done then the counsel for those two entities would have been able to come in and indicate if they thought the request or the subpoena was overbroad or what they had and what they what they could produce so i find it rather disingenuous of the plaintiff's counsel to say that they have not received enough documents or documents that they needed to cross examine when they have number one who received as the trial court noted when he looked at what all they've been given so stanch all documentation within which to cross examine these two experts so if the plaintiff really wanted the information why did they not issue then subpoenas why did they proceed with trying to get the information through defense counsel who it is undisputed is not an employee of either of these two entities and has no legal power to compel them to produce anything the other thing that i wanted to point out was with the with regard to the should bluesky case and whether or not information from the parties ensure a party and the parties attorney i have not seen any cases that have extended that to production of documents non parties be required to answer in a rocket tori's to produce documents that is a far cry from what those two cases hold and i have not i see no case extend that to facts like this case the other thing i wanted to point out with regard to the dolan case is that in that case that that case is very distinguishable from the facts in this case in the do and was a president corporate representative and majority shareholder of the defendant off so that court properly held he had submitted to the jurisdiction of the court and rejected his jurisdiction argument with respect to the the ten reports i would i would then if like pointing out that the ten reports are not actually a part of the record  those payments could have been made as treating physicians but again friend and and defendant law firm turn over everything that we had that was responsive tori's a request to produce with regard to these two experts of ours so in the last thing that i will i will love speak  not that was agreed to that's in our brief the nd one was because of the because of the pending appeal and the danger of the court's indication to us that a five point one missing evidence instruction could be given that is prejudicial thank you and again justice jorgensen do you have questions if it  albeit directed to you but the interrupted tories and answers there too would come from a non party are you drawing that distinction and if so on what basis well i i am drawing that distinction your honor and on the base to the fact that discovery requests are propounded t parties not to persons that are not subject to the jurisdiction of the court and that are not have not been have not appeared and have not been served with process the two hundred and fourteen and answers ten right tories those are requests the parties have to answer and whether or not the defendant herself would have any way of compelling or requiring nonparty use to respond to discovery request who are under your control i mean you can and you just view that it's state farm was under the control of the defendant yes your honor i dispute that state farm the fact that in the years of doing this type of work as an outside law firm we state one does not control  you know our they have no control over us they may pay the fee bills as a result of the contract between them and their insured bot they do not control us nor do we control state farm but if we if we were to ask for something from them with regard to another case or anything outside of the one playing that we're working on we cannot get that the only way that we could get that would be to issue a subpoena and we have had to do it on multiple occasions right why didn't you do that here well your honor i guess because it was not my it was not my discovery just that certainly wouldn't be in the record so i take that back ok that's all i have  thank you just a yes if you had a if you had information that you wanted from state farm with a th in your representation of your client that well it would depend on what what the information was if it was in regard to the specific claim that we were then the insured  contempt how else would you be able to get it the only other way that i would be able to attempt to get information or documentation from them would be to issue a subpoena for the for that information or documentation fee in this case that would be state farm insurance again in response to some of the prior questions i think one of which was mine that there isn't any other court in illinois that appears to apply the reasoning of should bluesky to any other discovery rules beyond two hundred and sixteen dollars but how do you respond to the quote that counsel gave us from that case and i actually have a date and front of me now they the court said in deciding a party duty under r again has been interpreted well to require a party to answer fully and in good faith to the extent of the actual knowledge and the information available to him or to his attorney  how how do you respond to the fact that the supposed the court didn't seem constrained by the fact that it was just looking at will to sixteen but look and was guided by other supreme court rules why shouldn't that principle apply here why should it matter that no other court now has that but this reasoning given the language  well the your honor i believe that the difference here is when when you read the portion that you read that the court was looking at information to be obtained from state farm insurance about other cases other insureds other other lawsuits you right yes that's that's correct your honor and and as part of who is under our control who's under provided to opposing counsel those are the documents and the things that are with in our control with in the control expert does not extend to our nonparty entity who may have other information that could have been sought by subpoena but was not within our control or custody thank you i do not have any other questions at this time i would like to thank both counsels for participating in this or argument this will make the court will take the matter under advisement and render a decision in due course the argument will be posted as others are also other in person arguments were posted this will be posted as well although it's being done remotely at this time again the court thanks everyone for their participation and we stand adjourned for the day thank you very much thank you notes to say