going for the apple raise gregory and lace up artist as mr wright directs each side will have up to twenty minutes for their argument if paul will also have five minutes or reebok you'll see the gentle time i mean device on my screen when time is that pertains to the trial court's exercise of discretion with regard to the motion to quash and we would ask for this court to conclude that it was improper in an abuse of discretion for the truck or to require continental to review over three thousand three hundred worker compensation claim files to term which of those claims involve persons following up the trailers and calling in producing specific workers compensation claim injury information or those nonparty would submit to the answer that is no and that the marching may twenty nine thousand to scupper your orders are improper now couple cases that we referred  goggle the court there specifically held that intervener is not a party and intervene or someone who is merely allowed to join an action in order to assert or protect an interest that may be affected by the court inclined vs hastings the court used the workers compensation act as an example to say when there's a specific statutory right to intervene in a case you look to that statute for the limitations on whatever role entity can have as an intervener section to dash for a wait is merely a procedure for intervention the underlying statute is how you determine the scope of that intervention and here section five be specifically the limits the involvement of an employer as an intervener section but the states the employer may at any time thereafter join in the action upon his motion so that all orders of court after hearing  judgement shall be made for his protection nothing more nothing in section five b says that the interviewer gets to participate as a party gets to participate in discovery and gets to participate in a trial and we pointed out a number of cases over the last sixty years in which the court has or the the appellate courts have said that as an intervener under worker's compensation act you're not a party you only get to participate as a party if the plaintiff consents under section  specifically asked the court to allow us to receive notice of all future proceedings and to make sure that any orders of the corps would protect our leet there was nothing in our petition in nothing in the resulting order that said that our role was beyond that now because continental is not a party the discovery tools the section of rule two hundred and thirteen to fourteen are not the proper mechanisms for obtaining information  thirteen specifically refers to the issuance of interactive tori's from one party to another party to fourteen talks about the issues or requests for production of documents from one party to another party to fourteen east specifically says one this basis because our role is very limited by statute and because the the role did not include participation as a party it was improper for the trial court to require continental to comply with the discovery of ques and accordingly we ask that this court reverse the the trial court with regard to the contempt order and the two underlying discovery warrants and on the nd issue this this pertains to the scope of the discovery not so much the mechanism the st issue basically said versus you have not you've not come after us and through the right method through subpoena well they did but the problem is the subpoena were way out of line way improper for them to go after we're talking about the balance under under rule to a one with regard to what is relevant and what is disproportionate or burdensome for a party to produce counsel yeah so did your client make no relevance and or privilege objections prior to the entry of the sanctions order on with regard to the  discovery requests in the st appeal the only objection to relevance was with regard to the control group information with regard to the burden of production the i believe the objections were that it was overly broad unduly burdensome the point is with regard to those discovery responses it's not so much a matter of checking to the substance it's a matter of objecting to the process requiring us to respond to discovery in the st place is what made that improper not necessarily the extent to which discovery was saw there so except for the nd issue the nd issue now we've got the right way to come after us for the discovery or for the information which is a subpoena and we did object to relevance we did object to the proportionality of what's at issue here which is the th three hundred dollars plus worker compensation file or claim information and it wasn't until the november hearing the plaintiff finally articulated what made this relevant even though we it to the basis of the relevance and the objection was counsel was concerned that auto handlers a defendant had not produced every bit of claim information to them because they had learned in another case involving a different insurance carrier that not all of the same information had been produced by him so that was the basis upon which they sought this information from us it had nothing to do with with continental withholding documentation plaintive note against this you have to to to balance the disproportionality what is the burden on continental to produce this in again we look at the carlson case where the court the courts have taken it also comes take into consideration you're dealing with a nonparty or a rd party here and continental is not a party to the substantive litigated issue going on between the ers as an auto him but more importantly the records being sought were about injuries to nonparty employees basically how did you get injured what was injured that's the information that's being sought here now contrary to what's been said by plaintiffs in this case pulling out all this information from three thousand three hundred plus documents was not a task that was ever done before initially continental identified all three thousand three hundred plus claims we provided that list to them in response to the discover y nothing indicates that continental reviewed those to point those claims to determine which of them involved employees falling off of trailers now in conjunction with the proceedings on the  submitted the affidavit of jeff silver continental who stated that what plaintiff is seeking is not kept on a computer system and that it would cost twenty eight thousand dollars just to paul the files oh out specific information and because there there's a potential that privileged information would be produced it would cost about two hundred thousand dollars to reduce it down to exactly what was ordered to be pig be produced by the court now our problem here is the proportionality of this the burden on continental is huge it's over two hundred thousand dollars to do what the court is asking us to do meanwhile the benefit to the plaintiff as well there might be some additional records showing that auto handlers knew about this problem with the trailer this is a problem that is set out in plainest complaint and this is a problem that kind of has with auto him workers why you would go after this information from a workers compensation is is ridiculous and i think this is a perfect case to demonstrate when you can have an abuse of discretion by trying to mine from workers compensation records that are not kept on computer specific information related to a very small issue and on that basis it was an abuse of the truck course discretion to order continental to respond to to that part of the subpoena everything else well yes that and the figures that contradicting what mr silver said is in the record the only thing is plaintiff stated and it's in the stand by his report players counsel stated that he would not agree to what he said but nothing's ever been submitted to the trial court indicating that those numbers are way out of line that it should only take x amount of dollars or x amount of time so the only evidence before the trial court on the expense to be incurred in doing this is what's contain silvers at the day so based on the lack of relevancy in the disproportionality of the benefit of producing these records again it was an abuse of discretion for the trial court to to puerto continental to produce or to go through those three thousand three hundred records identify specific claim and injury information extract and log all of the privileged information and produce that to the point and so based upon those two conclusions that we're asking this court to find we've asked that you reverse the june twenty contempt order reversed the may th order granting the motion for sanctions reversed the mail and haven't ordered drinks even though she can file and reverse the december i'm roy drips and i'm here with my partner michael blow to vogel on behalf of the apple leaves burgess this case presents the simple issue of how long courts will tolerate the flouting of discovery requests authorized by the supreme court rules and sought to be enforced by orders of the circuit court how long will courts allow anyone to keep moving the goalposts by interposing repeated untimely objections each time a request is ordered to be enforced in the objections that have been made are over rules i ask this court to answer the question with today this stops today i want to go through just briefly the chronology in this case because it's important continental sought to intervene in july of two thousand eighteen it filed a motion asking for the court to authorize it to come into the case it did not file a notice it recognized the court's authority to manage the litigation when it filed the notice and a day asked the court to order the parties who are already in the case to provide notice of all future proceedings to continental this is a far cry from intervening simply to protect its lead and i would also note that the workers compensation lien is automatic there's no need for continental to intervene to enforce its lien we have to pay continental served its responses its sole objection to every interactive torrie and request for production was that it was not subject to discovery because it was merely an intervenor continental suggested that the proper way to serve the discovery was through a subpoena and told the court were always subject to the subpoena power continental did not suggest that any of the discovery was improper there was no privilege objection there was no privacy objection there was no proportionality or burdensome objection there was no insurance privilege objection and at the core of continentals argument to this court is that by simply changing the means of delivering the same discovery request that somehow revive continentals opportunity to object to the substance of the request after it has already had that into a subpoena with a deposition writer that does not revive their opportunity and i would suggest that the trial court cannot be held to abused its discretion in determining that that did not revive continentals opportunity to object to those discovery requests after the court had already ruled on the same ones now on march th two thousand and nineteen in our brief does incredibly miss date this is march two thousand and five but the court's order was march of levon two thousand and nineteen continentals objections were overruled and continental was ordered to fully answered the discovery by march twenty five two thousand and nineteen on that date march twenty five two thousand and nineteen continental did not fully answer the discovery it reasserted the same objections that had already been overrule again it didn't add privilege arguments it didn't add proportionality it didn't say these were overbroad it didn't say they were relevant so plaintiff moved for sanctions and continental responded to the motion for was labor intensive the necessarily took time as it required a manual review of each of jack cooper transport companies hundreds of claimed files ok so now that is way back in may of two thousand and nineteen continental now wants this court to bootstrap the work it already did go into all those files and say well we should have back then looked at falls from upper deck and at the latter we didn't do that and so i'm now going through all those again is going to cost two hundred one thousand dollars the circuit court was within its discretion in refusing to accept that number because they had already told them we had gone through the files and they had no explanation for why they did not when they went through the files the st time why they did not get the information that plaintiff had requested having conducted the review they cannot now argue that doing so was burdensome they just didn't do it the right way but i would respectfully submit that is on continental that is not on the circuit court and it's not on point undertaking it was a manual undertaking going through hundreds of claims files but we put it together for him now that we have this list put together to somehow electronic research and determine whether we can identify whether these are upper deck falls from jack we didn't have that discussion i can look into that ok well the time to have looked into it was before the humoring and before the court ordered them to produce it if they could do it they should have come in and said hey we can retrieve that information from these documents instead they wait over six months and then when there's another hearing after the subpoenas issued they say oh it's going to cost all this money and respectfully i would suggest that what they should have done is said look we've already done the work going through this and putting them into some electronic form which they said in may they didn't ever subtract out that work from the two hundred thousand dollars and explain why that work didn't contribute to what they were saying they need to do next it just doesn't make sense and the circuit court was not required to take at face value their affidavit when their own counsel is telling them something different six months before without identifying whether plea injuries occurred from falls from op or dec or ladders nettles responses actually worse than a document dump because the needle isn't even in the haystack plaintiff cannot take what they've given us and pull out the information ourselves it's just not there and they were ordered to do it back in march two thousand and nineteen the trial court entered north's ancients on may th two thousand and nineteen for the violation of its previous order nothing that was raised at the time remotely justifies continental in not obeying that march two thousand and nineteen order and it wasn't until a month after the mail order the continental asked for a finding of friendly contempt and the problem with that is under this court's decision in the will toys r us case you can't wait a month and call it friendly content you're an actual contempt at that point you need to do this expeditiously you need to do it right away in the circuit court to find within its discretion that they had waited too long but the circuit court was a actually restraint in this case and did find them in for a friendly contempt didn't put a one thousand dollars a day or ten thousand dollars a day on them find them a dollar a day under the contempt salute this court could review the ma now when we did file the subpoena when we did serve that continental simply said they needed until november th in which to identify reject and wall while the information it considers to be privileged or otherwise no discoverable these were objections that could have been made back in january the discovery requests were identical and the court could easily of found within its discretion that those objections should have been made way back in january when they were objecting to being treated subject to discovery under the supreme court rules now the court actually the claim files and counsel for continental attempted to reach a representative by telephone and was told that that representative was not available the court didn't put down the hammer at that time the court  we set it for december th two thousand and nineteen for reports from counsel for continental regarding the burden associated with producing the information on december  now they're saying they don't know this is important because it undercuts the affidavit that was filed about cost if the affidavit is saying we're going to have to start from square one dollar and go through all of these records again and the judge is aware that they've already done this it's electronically searchable and they can't say if that's really something they could do or not the judge is justified in disregarding the affidavit now significantly the trial court found that medical records of other is or persons and claim notes of other injured persons had not been requested by plaintiffs in therefore did not need to be produced so the privacy  privilege arguments were a addressed by the trial court and the court determined that those that information did not need to be produced the court gave continental every opportunity even adjourn the sanctions orders significantly the circuit court refused to sanction continental in the st order on march twenty five two thousand and nineteen this is not a case in which a trial judge goes off the rails and starts ordering at the drop of a hat they objected the objection was overruled they were ordered to comply then they come right back with the same objection that has already been over this pattern continued they keep moving the goal posts an objection is made it's overruled they're ordered to comply they come back either with the same objection or later on in the fall with new objections that could have been raised but never wore a ven the trial court ordered sanctions when they came back in and just raised the same objection all over again now it also shows why sanctions are necessary to vindicate the authority of the court in this case the circuit court overruled the only objections that were made and ordered compliance continental did not seek a finding a friendly contempt until june twenty two thousand nineteen under williford that means it's too late and that delay is fatal to continentals position i want to talk just a little bit about the court's authority to order the discovery in the st place continental voluntarily intervened in the case they were not brought in by plaintiff and they did not have to come in in order to enforce their wheat stanch a jury it's automatic we have to obey at an honor continental acknowledge the power of the court over it by filing a motion for leave to intervene in that simply for serving a notice it voluntarily joint in the workers compensation state uses the word join by baal and cheerily joining the lawsuit the intervenor subject itself to be orders of the court this princip the plain language and purpose of section two days for a weight off of the code of civil procedure that section bolsters this conclusion by saying quote the applicant shall not interfere with subpoena process but kind of nettles repeated defiance of court orders and serial objections has interfered with control of the litigation continental has done exactly what the statute was intended to guard against after almost sure years of wrangling about discovery with none of the documents and information requested actually produced can never continental never explains how the statute limits in any way the effect of quote joining in the action or immunize is the intervenor from the discovery process and of course the plain language of the statute contains no limitation on joining in the proposition that intervenor is insulated from discovery much less can thumb its nose at the court in refused to obey court orders the court trial court was not obligated to consider late objections to discovery requests the could have been made months and months earlier now one thing i'd also want to note is that they never raise their relevance argument in the circuit cour they're doing it now and if this court chooses to interchange the argument i would just suggest the supreme court rule to a one before closes their position to a one b authorizes discovery whether it relates to the claim or defense of the party seeking disclosure to a one rule to a one is also not limited to parties doesn't limit it to parties liberty the expanse that was state man today but based upon the court's own observations in dealing with the parties throughout this litigation justice overstreet i would answer th by saying that the affidavit conflicted with the representations of counsel at the prior hearing and the court was entitled to rely on counsel's representations that counsel had gone through these documents and that it was an onerous process and that they were now electronic and he thought they could be searched now having done that having said that it represented the rd already been the search done the affidavit doesn't address how much of the search was already done and how much still needed to be done the two hundred thousand dollars did not say and we've done one hundred and fifty thousand dollars of those four and i think the judge was justified in concluding that the affidavit didn't really address the representations of counsel and i hope that answers your question continental has clearly tried to thwart plaintiff from establishing the foundation for admissibility of similar injuries objection after objection is raised only after the court has order compliance in this court's decision in the sense of the risky case cautions that discovery is not supposed to be conducted like this discovery is not a tactical game in the end this case involves plaintiff's having to spend almost two years trying to obtain discoverable information from an entity that inserted itself in the last city but has continually come up with evolving reasons why it will not produce the information continental only interest has been in dragging this out as long as possible and i asked the court to put a stop to this now by affirming the orders of the circuit court thank you th the initial request for production of documents in iraq tories by objecting to every single one in january two thousand nine hundred by asserting this is not the proper process we're in intervene or we're not subject to this type of discovery answer this by march twenty five and so continental took its document production fashion answers direct tours and response requests production of documents and referenced all the documents t produced so far which were responsive to forty five of forty eight request for production and answered all of the iraq tories except one and that is who is the control group of continental which has absolutely nothing to do with the substantive issues in this case now plain as council today is trying to blur the line between what we said in response to the discovery request versus what we said in response to the subpoena and keeps missing the fact that there were discovery records requests were improper from the very beginning that's why we appealed it because as an intervener no court is ever felt that we are to respond to to thirteen  dollars discoveries and we gave them the roadmap saying issue a subpoena so we didn't wave anything by finally responding to the substance of these requests in response to the  in response to the subpoena now one thing counsel has stated which is clearly wrong counsel states that at the may th hearing counsel for count known stated that all the records are kept electronically  our searchable counsel stated that he could produce records on a cd and that assumes that they can actually be called down to what needs to be done now it's interesting that c never raised this search ability issue before the truck or at the hearings on the motion to quash when presented with the evidence would have jeff silber who said these documents are not kept on a computer system just as well i don't necessarily have to believe that and there's even a reference to request number forty two which deals with they wanted a printout of all claims floor or all injuries all summaries of injuries or jack the st place as play to put want you to believe today we have the un contradicted testim our evidence from just silver's affidavit that these were not searchable now one last point with regard to the relevancy foundation for the admissibility of similar injuries it would appear that the best evidence of getting in similar injuries is testimony from somebody from jack cooper not from a rd party's summary of an injury to the extent that exists in a worker's compensation the assertion of how this is relevant is is mind boggling and it does not warrant the disproportionate impact this has on continental in again these are two appeals because there's two issues one is the st set of discovery orders up through may were not proper because it was not the proper procedure to subject us to discovery and again the sanctions unlike the wilford case the sanctions were going to go into to they want in effect before we asked for friendly contempt and that's a key point there too and then the nd issue is once you've got the right procedure here's substantively what's wrong with what you're asking for and we would ask this court again to respond to the two questions i posed initially and hold that it was improper for the trial or to rule the way