1 "Asbestos litigation is the longest-running mass tort in United States history ." Rand

Institute for Civil Justice, Asbestos Litigation Costs and Compensation, An I nterim Report (2002).
2 Riley Stoker dismissed its appeal prior to oral ar gument. This opinion concerns only the appeal o f Warren

Pumps. FOURTH DIVI SION OCTOBER 16, 2008

Nos. 1-06-2163 and 1-06-2691 (Consolidated)
In re ALL ASBESTOS LI TIGATI ON ) Appeal from the

-------------- -------------- -------------- -------------- ------------- ) Circuit Court of (C oo ne y an d C on wa y, ) Co ok Co un ty. Plaintiff-Appellee, ) ) v. ) ) Lisa A. L aConte, as Counsel for ) Defendant Warren Pumps, LLC; and ) Christopher P. Larson, as Counsel for ) Honorab le Defendant Riley

Stoker Corporation, ) Willia m D. Ma ddux, Contemnors-Appellants). ) Judge Presi ding.

MODIFI ED OPINI ON ON DENIAL OF REHEARING JUSTICE CAMPBEL

L del ivered t

he opinion

of the co urt: This consolidated appeal involves a discovery dispute arising out of ongoing consolidated Cook County

litigati on entitle d: In re: All Asbestos Litigation. 1 The law firm Cooney and Conway (C & C) r

epresents multiple individuals who claim that they contra cted various forms of fatal ca ncer as a result o f exposure

to asbest os up to 40 y

ears ago. On beha

lf of thes e plaintif

fs, C & C sued defendants Warren Pumps, LL C, a manufacturer of industrial pumps, and Riley Stoker, a designe r and man ufactur er of ste am gene

rator bo ilers and

fuel-fi ring eq uipment. 21-06-2163 and 1-06-2691 (Consolidated)

2

C & C served discovery

requests upon Warren Pumps requesting product sales information coveri ng a 38-year period. Warren Pumps com plied wit h the disco very requests. C & C then ser ved Warr en Pumps wi

th a motion t

o compel a

dditional d

iscover y. L isa A. L aConte (LaConte), attorney

for Warren Pumps, refused to comply with the motion. The trial court granted C & C's motion to compel discovery and entered an order of " friendly conte mpt," citing LaConte $1. On app eal, LaC onte c onten ds th at the trial court erred i n comp elli ng dis covery cov ering a nearly 40-year pe

riod when C & C did not allege that any specific plaintiff was exposed to or harmed by the pr

oducts manufactured or sold by Warren Pumps any spec ific location in Illinois. For the following reasons, we re verse, vacate the two orders of the tria l court compelling produ ction and fi ndin g LaConte in con tempt , and r emand this matt er for f urthe r proce edings consistent with this opinion. BACKGROUND According to C & C, Cook County asbestos plaintiffs are ty

pically union journey

men tradesme n who wor

ked at numerous commercia l and industrial jobs ites over the course of the ir careers. All Cook County asbestos cases are consolidated into a special, seg regated calendar called, as noted above, In re: All Asbestos Litigation. Under a 1985 Cook County circ uit court

case ma nageme nt order , asbesto s defend

ants are require d to produc e recor ds of sale s of asbe stoscontaining products in Illinois. Consolidated discovery includes master interrogatories and request s to produc e. All def endants named in Cook County asbestos litigati on are r

equired to
an sw er di sc ov er y re qu es ts on e t im e o nl y.1-06-2163 and 1-06-2691 (Consolidated)

3

Master discovery

requests apply to thousands of c ases and have a broader scope than request s gene

rated in individua

l, non-as bestos la w division c ases. On Febr uary 27, 2006, C

& C filed

a motion to c ompel Warr en Pumps to p

roduce a ll invoices, records, purchase orders, r eceipts, specifications, bills of lading, sales memoranda, business records correspondence, publications, sales br ochures, manuals, instruction sheets or any other doc uments concernin

g the sa les of War

ren Pumps'

products to any person or entity in the State of Illinois, as well as documents indicating know ledge of hazards relating to asbe stos fibers or asbestine particles, from 1948 through 1986. LaConte filed

a respon se stating

that Warr

en Pumps pr

eviously provided copies of its answers to interrogatories and re sponse to request for production to C & C on October 25, 2005. LaConte later provided C & C a dditional copies of the discovery responses it filed in October 2005, and suppleme

nted Warr

en Pumps'origina

l respons e with doc

uments re lating to

pumps sold to specific jobsites at issue in the cases set for trial in 2006. LaConte also submitted the affidavit of Roland Doktor, a Warr en Pumps manager and employee since

1978. Doktor averred that Warren Pumps' rec ords were not maintained in a manner t hat allow ed them to

be sear ched by geog raphic r egion; r ecords f or the Sta te of Illinois were not segrega

ted but, rather, kept according to the customers who purchased products. C & C did not file any written re ply to Warren Pumps' re sponse. On May 3, 2006, the trial c ourt entered an order gra nting C & C's motion to compel Warren Pumps to respond to C & C's request for production. Warren Pumps objected a nd moved for reconsideration or, in the alternative, immediate interloc utory appea

l under Supreme Court Rule 308(b) (155 Ill.2d 308(b)).1-06-2163 and 1-06-2691 (Consolidated)

4

On June 13, 2006, the trial court entered an order deny ing Warren Pumps' combined motion. On July 7, 2006, La

Conte filed a motion advising the trial court that Warren Pumps was unable to comply with the court' s order of May 3, 2006. LaConte explained that although the court required the production of sales recor ds in all 102 Illinois counties, Warren Pumps undispute dly

did not provide its pr

oduct to a ny j obsites lis ted in any

of the 193 Illinois complaints filed by C & C that named Warr en Pumps as a defendant. La Conte again explained that Warr en Pumps sup

plemente d master d

iscover y a nd identif ied 13 add

itional ca ses wher

e it was reasonable to expect that a plaintiff or witness would testify about working with pumps manufactured by

Warren Pumps. LaConte stated that the trial court' s order extended far bey ond Warren Pumps' good-faith attempt to comply with discovery, re spectfully advised the tr ial court that it would not comply with further discovery , and requested a finding of friendly contempt and/or interlocutory a

ppeal. C & C filed no response. On July 11, 2006, t

he trial c ourt ente

red an or der find ing fri endly

contempt against LaConte base d on her a

dvice to t he court that Warr

en Pumps wa s unable t

o and ref used to comply further w

ith the order of May

3, 2006. The trial court imposed a fine of $1 as a sanction. LaConte filed a timely

notice of appeal on July 25, 2006, pursuant to Rule 304(b)( 5) (155 Ill. 2d. R. 304(b)(5)). OPINI ON On appea l, LaConte con

tends tha t C & C's motion to compel discovery was over broad in that C & C d

id not alle ge that

any specific plaintiff was expose d to or har

med by Warren Pu

mps' products in any specific location . LaC onte asse

rted tha t a manuf acture r may not be com

pelled to1-06-2163 and 1-06-2691 (Consolidated)

3 C & C lists on

ly 1 7 countie s with multip le jobsite s; C & C lists n o jobsites f

or 54 I llinois counties. 5 produce all records pertaining to all produc ts sold in the State of Illinois over a nearly 40-year period. Supreme Court Rule 201(b)(1) provides that a party may obtain full disclosure of a ny matter "relevant to the subject matter involved in the pending action." 166 Ill. 2d R. 201(b)(1). Likewise, under Supreme Court Rule 214, any party may

direct a written request to any other party to produce

documents, etc. "relevant to the subject matter of the a ction." 166 Ill. 2d R. 214. In line with supr

eme cour t rules, the right

of discov ery

is traditionally

limited to disclosure of matters relevant to the case at issue. I n order to protect against abuses and unfairness, a court should deny discovery re quests when there is insufficient evidence that the requested discovery

is relevant or will lead to such evidence. Leeson v. State Farm Mutual Automobile Insurance Co, 190 Ill. App. 3d 359, 366, 546 N.E.2d 782 (1989). LaConte agu

es that C &

C failed t

o demonstr

ate that i ts discove ry request is releva nt to any particula

r case pending aga

inst Warren Pumps in Cook County. Out of the 193 cases where Warren Pumps is a named defendant, C & C's complaints show a total of 1,444 sepa rate jobsites or locat ions for w

hich ther e is mere ly a

blanket a llegat ion of expos

ure to as bestos. O

ut of thes e 1,444 jobs ites, 1,16 0 jobsites a re loca ted in Illinois. L aConte a rgues t hat C & C' s motion to compel production effectively forces Warren Pumps to search its records for possible sale s pumps in al l 102 count ies in Illinoi s and to prod uce these docu ments desp ite the fact t hat C & C has alle ged expo sure in on ly 4 8 of the 10 2 countie s. 3 LaConte also notes that pumps are often shipped to multiple locations after leaving the manufacturing plant and that Warren Pumps lacks1-06-2163 and 1-06-2691 (Consolidated)

6

the financial and manpower resource s to track 17,000 manufacturers in I llinois to determine whether its pumps were rerouted to different geographic locations. L aConte asserts that Warren Pumps is ca

pable of search ing for pumps at particu lar sites based only on the name of the
custome r at the tim e of purch ase . LaConte characterizes C & C's requests as an improper fishing e xpedition aimed not at supporting existing claims but at finding new ones. I n support, LaConte relies primarily on a Texas asbestos case, In re Sears, Roebuck & Co. , 123 SW.3d 573 (Tex. App. 2003). There, a Michigan plaintiff suffering from mesothe lioma sued Sears and 37 other defendants in Texas allegi ng life -long a sbest os ex posur e via h is fam ily plum bing b usin ess, h is wor k as a p lumb er's apprentice, and his career a s a 24-yea r union plumber. The plaintiff listed 11 categories of products made by 24 ma

nufactures as potential culprits. Of those products, only two--Hobart boilers a nd water heaters--wer

e conne cted to Se ars and t he plaint iff's e xposure to t

hose prod ucts would have occurred prior to his 24-y ear career as a union plumber doing commercial jobs. Sears , 123 SW.3d at 574. Two months before trial, the plaintiff served a discovery request on Sears requesting the name, date of manufacture and sale and asbestos content of each product it sold or made available for sale, including 200 items ranging from bath rugs and shower c urtains to lawn mowers and sewing machines. Sears objected; the plaintiff moved to compel production; and the plaintiff died in the interim. The trial court overruled Sears' objections and compelled discovery for the period 1940-78, omitting only mundane household items. Sears , 123 SW.3d at 575. The Texas appeals court noted that the plaintiff identified only two Sears products as potential sources of asbestos exposure, y et the trial court's order required pr oduction of far more.1-06-2163 and 1-06-2691 (Consolidated)

7

Recogn izing the substantia

l obstacle s faced

by a sbestos pl aintiffs

attemptin

g to con nect the ir exposure to specific products, the appeals court neverthele ss observed: "Fuerstenau' s death from an asbestos-related disease does not entitle his estate to rec over money f rom all companies selling asbes tos product s." Sears , 123 S.W.3d 579, citing Gaulding v . Celotex Corp ., 772 S.W.2d 66 (Tex. 1989). The court reversed and remanded the case to the trial court, holding that the trial court's order compelling Sear s to comply with discovery was overbroad: "[D]iscovery requests must be reasonably [related] to*** the case." See , In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180 (Tex. 1999). The court concluded that the discovery requests could have been more narrowly

tailored. Sears , 123 S.W.3d at 579. Although there is a dearth of authority in Illinois addressing the mechanic s of discovery in asbestos litigation, our courts generally hold that that wide, sweeping discovery requests are considered an abuse of discretion. See, e.g., People ex rel. General Motors Corp. v. Bua , 37 I ll. 2d 180, 226

N.E.2d 6 ( 1967); Leeson, 190 Ill. App. 3d 359, 546 N.E.2d 782. I n General

Motors , the plain tiff in a p ersonal

injury action so ught pro duction of

all reco rds rela ting to the Corvair automobile for model yea rs 1960 through 1965, notwithstanding the fact that the plaintiff' s injury involved only the 1961 Corvair model. I n Leeson , the trial court compelled an independent examining physician to produce 2,100 benefits claims submitted to a single medical office for an unrelat ed case involving

a single insuranc e claim. T

he trea ting phy sician te stified that it would take him 40 hours and cost $2,000 to $3,000 to photocopy the unr elated documents. This court found the order vexatious and oppressive. Leeson , 190 Ill. App. 3d at 366. C & C responds that the nature of the consolidated asbestos docket is unlike ty pical discovery a

nd, as such, requires a unique response. C & C balks at the notion that it is on a1-06-2163 and 1-06-2691 (Consolidated)

8

"fishing expedition," noting that merely identifying a

defendant's product at a jobsite where a plaintiff worked is insufficient to establish asbestos exposure. Naden v. Celotex Corp., 190 I ll. App. 3d 41 0, 546 N.E .2d 766 (1 989); Thacker v. U N R Industries, Inc. , 151 Ill. 2d 343, 603 N.E.2d 449 (1992). C & C argues that beca use the asbestos litigation involves consolidated discover y, t he Cook Cou

nty asbestos docket be lies a ca se-by

-case a pproach and that f

ull production of sales records is relevant to proving the material element of exposure to asbestos. In su pport, C &

C cites Pemberton v. Tieman , 117 Ill. App. 3d 502 , 453 N.E.2d 802 (1983), for the proposition that " '[r]elevancy is determined by re ference to the issues, for generally, somethin g is relevant i f it tends t o prove or di sprove som ething in is sue.' " Pemberton , 117 Ill. App. 3 d at 50 5, quo ting Bauter v. Reding , 68 Ill. App. 3d 171, 175, 385 N.E.2d 886, 890 (1979). C

& C disting

uishes Leeson on the issue of rel evancy , noting t hat Leeson sought insuranc e cover

age for medica

l bills in connection

with a sing

le automo bile acc ident. Warren Pumps points out, however, that case management orde r No. 18, which vacated and superseded case manag ement order No. 1, provides that discovery in the consolidated asbestos litigati on should b e specif ic as to the

case, the jobsite a

nd the def

endant: "3. The standing schedule for pre trial activity on the independ ent asbe stos cale

ndar sha ll be as fo llows: a) Plainti ffs shall

provide d

efenda nts with an swers to standar d consolid

ated inte rroga tories in t he form a pproved by t his Court not la

ter than 270 day s before trial. With r

espect t o witnesses expected to testify on issues of produc t exposure or premises exposure, answers to interrogatories shall spec ify the1-06-2163 and 1-06-2691 (Consolidated)

9 defendant(s) against which the witness' testimony will be offere d; the produ ct(s) ab out which

the witne ss will test

ify ; the job site (s) about which the witness will testify; the time frame(s) about which the witness will testify; whether the witness is represented by counsel, and if so, the identity of c ounsel; and if not represented by counsel, a curre

nt and ac curate

address for the w itness." (Emphasi s added). Cook Co. Cir. Ct. Case Management Order No. 18 (e ff. March 19, 1997). In lig ht of the r ecord, we find tha

t C & C's d

iscover y r equests e xceed the require ments of c ase management order No. 18. Although the asbestos litigation is without a doubt complex and distinct from the typical persona l injury case, C &

C's discovery

request is overbroad and does not comply with the discovery rules and related limitations provided in case manage ment order No. 18. We therefore vacate the trial cour t's order to compel discovery

. In light of our decision, we also vacate the citation of friendly contempt against LaConte. LaConte's c onduct in a

dvocatin g for he r client' s position w as neithe r contuma

cious nor did it subject the court to disdain or scorn. See, e.g ., Kraima v. Ausman , 365 Ill. App. 3d 530, 850 N.E.2d 84 0 (2006); Dufour v. Mobil Oil Corp. , 301 Ill. App. 3d 156, 703 N.E.2d 448 (1998). For the reasons stated herein, we re verse the judgment of the trial court compelling Warren Pumps to produce excessive documentation. We vacate the order to c ompel, vacate the friendly conte

mpt citation entered against attorney LaConte, and remand this matter to the trial court for further proceeding s consistent with this opinion. Reversed and vacated; cause re manded.1-06-2163 and 1-06-2691 (Consolidated)

10

O'BRIEN and MURPHY, JJ., concur.DIGEST OF OPI NION
In re ALL ASBESTOS LI TIGATI ON

-------------- -------------- -------------- -------------- CASE NAME: (C oo ne y an d C on wa y, Plaintiff-Appellee, v. Lisa A. L aConte, as Counsel for Defendant Warren Pumps, LLC; and Christopher P. Larson, as Counsel for Defendant Riley

Stoker Corporation, Contemnors-Appellants). 1-06-2163) FIRST 1-06-2691) (Cons.) CALV IN C. CAM PBE LL JUNE 5, 2008 District Docket # Autho ring J udge Date Filed
PANEL MEMBERS: O'BRIEN and MURPHY, JJ., concur. SUMMARY : This consolidated appeal involved a discovery dispute arising out of ongoing consolidated Cook County Asbestos L itigation

. The law firm Cooney and Conway (C &

C) represented multiple plaintiffs who claimed that they contra cted various forms of fatal cancer as a result of exposure to asbestos up to 40 years a go. On behalf of these plaintiffs, C & C sued Warre n Pumps, LLC, a manufa

cturer of industrial pumps, and served discovery requests upon Warren Pumps requesting product sales information covering a 38-year period. Warren Pumps complied with the discovery re quests. C & C then served Warren Pumps with a motion to compel additional discovery . Lisa A. LaConte (L aConte), attorney for Warren Pumps, refused to comply with the motion. The trial court granted C & C's motion to compel discovery and entered an order of " friendly conte mpt," citing LaConte $1. LaConte appealed, contending that the trial court e rred in compelling discovery c overing a nearly 40-year period when C & C did not allege that any specific plaintiff was expose d to or har

med by the produ

cts manuf acture d or sold by

Warren Pu

mps any specific location in Illinois. On appeal, we held that the trial court's orde r was over broad under Supreme Court Rules 201(b)(1) and 214, which permit disclosure of "re levant" subject matter, and vexatious to Warren Pumps under Illinois case law authority pertaining to discovery . C & C's blanket allegation of plaintiffs' exposure to asbestos in 102 counties across I llinois was an improper fishing expedition where Warren Pumps only operated job sites in 48 Counties. We reversed the trial court, vacated the two orders compelling production and finding LaConte in contempt, and remand this matter for further proceedings c onsistent with this opinion. Reverse d, vaca

ted, remanded wi

th instructions.REPORTER OF DECI SION S - IL

LI NOI S APPELLATE

COURT

In re ALL ASBESTOS LI TIGATI ON

-------------- -------------- -------------- -------------- CASE NAME: (C oo ne y an d C on wa y, Plaintiff-Appellee, v. Lisa A. L aConte, as Counsel for Defendant Warren Pumps, LLC; and Christopher P. Larson, as Counsel for Defendant Riley

Stoker Corporation, Contemnors-Appellants).

Nos. 1-06-2163 and 1-06-2691 (Consolidated)

Appellat e Court of

Illinois First District, Fourth Division JUNE 5, 2008
JUSTICE CAMPBEL

L del ivered t

he opinion

of the co urt: O'BRIEN and MURPHY, JJ., concur. Ap pe al fr om th e C ir cu it Co ur t o f C oo k C ou nt y. The Honorable William D. Maddux , Jud ge Pres idin g.
For APPEL

LANT , Hey

l, Roy ster, Voe lker & Allen, of Pe oria (Karen L. Ke

ndall, of counsel).

For APPELL

EE, Cooney and Conway , of Chicago (Kathy

Byrne , of counsel).