                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                            Payne v. Hall, 2013 IL App (1st) 113519




Appellate Court            VERA PAYNE, as Independent Administrator of the Estate of Michael
Caption                    C. Payne, Deceased, Plaintiff-Appellee, v. DONALD HALL, Defendant-
                           Appellant (CHICAGO TRANSIT AUTHORITY, a Municipal
                           Corporation, Defendant).



District & No.             First District, Fifth Division
                           Docket No. 1-11-3519


Filed                      March 22, 2013


Held                       In an action arising from the fatal injuries suffered by plaintiff’s decedent
(Note: This syllabus       when he fell under the wheels of a city bus driven by defendant, the trial
constitutes no part of     court did not abuse its discretion in denying defendant’s motion for an
the opinion of the court   order under Supreme Court Rule 201(c) excluding the videotapes and
but has been prepared      photographs taken by cameras on defendant’s bus and a bus following
by the Reporter of         him, notwithstanding defendant’s argument that watching the videos and
Decisions for the          photographs would exacerbate the post-traumatic stress disorder he
convenience of the         suffered following the incident, since granting the order would deny
reader.)
                           plaintiff an opportunity to impeach defendant if his testimony varied from
                           what was shown by the images.


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-L-13138; the
Review                     Hon. Moira S. Johnson, Judge, presiding.



Judgment                   Affirmed; contempt order vacated.
Counsel on                  Krista R. Frick, of Barker & Castro, LLC, of Chicago, for appellant.
Appeal
                            Marc A. Taxman, of Anesi, Ozmon, Rodin, Novak & Kohen, Ltd., of
                            Chicago, for appellee.


Panel                       JUSTICE HOWSE delivered the judgment of the court, with opinion.
                            Presiding Justice McBride and Justice Palmer concurred in the judgment
                            and opinion.




                                               OPINION

¶1          Defendant, Donald Hall, a Chicago Transit Authority bus operator, appeals from the trial
        court’s order finding him in “friendly” civil contempt pursuant to Supreme Court Rule
        304(b)(5), after the trial court denied his motion for a protective order. Ill. S. Ct. R. 304(b)(5)
        (eff. Feb. 26, 2010). Hall sought a protective order to limit the use of videotapes and photos
        taken during and after the accident in the underlying wrongful death action filed by Vera
        Payne, as independent administrator of the estate of Michael Payne, deceased. Defendant
        Chicago Transit Authority is not a party to this appeal. For the following reasons, we affirm.

¶2                                         BACKGROUND
¶3          On September 17, 2009, the decedent, Michael Payne, fell underneath the rear wheels of
        a Chicago Transit Authority (CTA) bus being driven by Hall and sustained fatal injuries. The
        accident was recorded by video cameras on the CTA bus driven by Hall and on the CTA bus
        immediately behind the bus driven by Hall. Hall has never viewed the accident videos.
¶4          Hall filed a motion for a protective order and to exclude the accident videos and still
        photos from being used during his discovery deposition and during his trial testimony. Hall
        alleged he suffered post-traumatic stress disorder (PTSD) as a result of the accident. In
        support of his motion, Hall attached the affidavits of his treating physician and licensed
        social worker both of whom averred, among other things, that Hall suffered from PTSD and
        that watching the videos would be detrimental to his physical and emotional well-being and
        his recovery and would compromise any gains he had experienced through treatment. Hall’s
        motion further asserted that the videos would speak for themselves and that plaintiff was able
        to use them with any other witnesses, including eyewitnesses, and was able to show the
        videos to the jury at the time of trial.
¶5          On August 9, 2011, the trial court denied defendant’s motion for a protective order. Hall
        refused to watch the video, and on September 6, 2011, he filed a request to be held in
        “friendly” contempt for purposes of having this issue reviewed by this court.

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¶6        On November 9, 2011, the trial court granted Hall’s motion, held him in “friendly”
       contempt, and ordered him to pay a fine of $1 for his failure to view the videos or still photos
       from the accident. This timely appeal followed.

¶7                                           ANALYSIS
¶8          On appeal, Hall contends that the trial court’s discovery ruling which requires him to
       view videotapes and photographs from the accident was an abuse of discretion and reversal
       is required.
¶9          This is an interlocutory appeal, filed pursuant to Supreme Court Rule 304(b)(5) (Ill. S.
       Ct. R. 304(b)(5) (eff. Feb. 26, 2010)), after Hall refused to comply with the trial court’s
       discovery orders, was held in contempt, and was sanctioned. Rule 304(b)(5) requires that
       there be “[a]n order finding a person or entity in contempt which imposes a monetary or
       other penalty.” Ill. S. Ct. R. 304(b)(5).
¶ 10        It is well settled through our case law that the correctness of a discovery order may be
       tested through contempt proceedings. Illinois Emcasco Insurance Co. v. Nationwide Mutual
       Insurance Co., 393 Ill. App. 3d 782, 785 (2009). In such cases our review of the contempt
       finding encompasses a review of the propriety of the underlying order upon which the
       contempt finding is based. Illinois Emcasco Insurance, 393 Ill. App. 3d at 785. The standard
       of review for contempt orders is abuse of discretion. In re Marriage of Baumgartner, 384 Ill.
       App. 3d 39, 62 (2008). A circuit court abuses its discretion when its ruling is “ ‘arbitrary,
       fanciful, unreasonable, or where no reasonable person would take the view adopted by the
       trial court.’ ” Taylor v. County of Cook, 2011 IL App (1st) 093085, ¶ 23, (quoting People v.
       Caffey, 205 Ill. 2d 52, 89 (2001)).
¶ 11        At issue is a ruling rendered by the trial court in its consideration of Hall’s motion for
       protective order concerning plaintiff’s use of videotapes and photographs from the accident.
       “[T]rial courts enjoy a great deal of latitude in determining whether a protective order is
       necessary.” Willeford v. Toys “R” Us-Delaware, Inc., 385 Ill. App. 3d 265, 272 (2008).
       “Thus, on appeal, we ordinarily review rulings on protective orders for an abuse of
       discretion.” Willeford, 385 Ill. App. 3d at 272-73.
¶ 12        Supreme Court Rule 201(c) provides that a court may enter a protective order, either at
       the request of any party or even on its own motion, as justice requires, denying, limiting,
       conditioning, or regulating discovery to prevent unreasonable annoyance, expense,
       embarrassment, disadvantage, or oppression. Ill. S. Ct. R. 201(c) (eff. July 1, 2002); Best v.
       Taylor Machine Works, 179 Ill. 2d 367, 445 (1997). “The nature of a Rule 201(c) order
       depends on the facts of the particular case.” May Centers, Inc. v. S.G. Adams Printing &
       Stationery Co., 153 Ill. App. 3d 1018, 1021 (1987). “Trial courts have discretion to
       determine whether justice requires a protective order [and] what the parameters of the order
       should be.” Willeford, 385 Ill. App. 3d at 273. The reviewing court will uphold the trial court
       decision on a protective order absent an abuse of discretion. Amoco Oil Co. v. Segall, 118
       Ill. App. 3d 1002, 1013 (1983). A court abuses its discretion only if it acts arbitrarily, without
       the employment of conscientious judgment, exceeds the bounds of reason and ignores
       recognized principles of law; or if no reasonable person would take the position adopted by

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       the court. Alm v. Loyola University Medical Center, 373 Ill. App. 3d 1, 4 (2007).
¶ 13        The goal of Illinois’s discovery process is full disclosure. Schuler v. Mid-Central
       Cardiology, 313 Ill. App. 3d 326, 331 (2000). “Discovery is not a tactical game but is
       intended to be a mechanism for the ascertainment of truth for the purpose of promoting either
       a fair settlement or a fair trial.” Schuler, 313 Ill. App. 3d at 331. Trial courts are afforded
       wide latitude in determining the permissible scope of discovery, and their rulings on
       discovery matters are generally reviewed for an abuse of discretion. Chicago’s Pizza, Inc.
       v. Chicago’s Pizza Franchise Ltd. USA, 384 Ill. App. 3d 849, 869 (2008).
¶ 14        Here, plaintiff sought to introduce evidence of videotapes filmed from the back of Hall’s
       bus and the front of the bus behind Hall’s which captured the accident, as well as still
       photographs made from the video, during Hall’s cross-examination. In his motion for a
       protective order, Hall argued that he should not be forced to view videotapes and
       photographs of the accident because they would aggravate his PTSD condition (which is a
       result of the accident), and he also produced expert testimony to support his motion.
       Specifically, Hall sought to exclude the accident video and still photographs from the video
       from being used both during his discovery deposition and during his trial testimony.
¶ 15        A Rule 201(c) motion is to prevent abuse during discovery, and the grant or denial of one
       requires the trial court to weight the competing needs and interests of the parties affected by
       a protective order. See Hall v. Sprint Spectrum L.P., 368 Ill. App. 3d 820, 823-24 (2006).
¶ 16        In this case, the reason that Hall gives for requesting the limitation on the use of the
       videotapes and photos during his deposition–the potential for exacerbation of his PTSD
       condition, which was the result of the accident at issue–does not fall under any of the reasons
       listed for granting a protective order. As previously stated, under Rule 201(c), the trial court
       may enter a protective order as justice requires, denying, limiting, conditioning, or regulating
       discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or
       oppression. Ill. S. Ct. R. 201(c) (eff. July 1, 2002). While there is no case directly on point,
       cases that have interpreted Rule 201(c) have primarily applied it in circumstances where
       there is the potential for the release of sensitive discoverable materials to third parties (May
       Centers, 153 Ill. App. 3d at 1021; Bush v. Catholic Diocese of Peoria, 351 Ill. App. 3d 588,
       591 (2004)), confidential information is sought to be discovered (International Truck &
       Engine Corp. v. Caterpillar, Inc., 351 Ill. App. 3d 576, 580 (2004)), or there is a lack of due
       diligence in taking discovery of witnesses (Crose v. Crose, 91 Ill. App. 3d 216, 220-21
       (1980)). We have not found, nor has Hall argued, any case law that specifically addresses
       whether discovery evidence can be limited by protective order because it may exacerbate a
       party’s medical or mental health condition.
¶ 17        In this case, the trial court considered the issues raised in Hall’s motion for a protective
       order. The court denied Hall’s motion to bar use of the video and still images during Hall’s
       deposition because the order would unfairly deprive plaintiff of the opportunity of
       impeaching Hall if the account of events given in his testimony varied from what was
       depicted in the images. We cannot say the ruling was arbitrary, fanciful, or unreasonable or
       that no reasonable person would take the view adopted by the trial court. Therefore, we find
       that the trial court did not abuse its discretion in denying Hall’s request for a protective order


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       under Rule 201(c).
¶ 18        The question that a reviewing court must decide in an interlocutory appeal is whether
       there was a sufficient showing to sustain the trial court’s grant or denial of the relief sought.
       Revolution Portfolio, LLC v. Beale, 341 Ill. App. 3d 1021, 1027 (2003). In concluding that
       the trial court did not abuse its discretion in denying Hall’s motion for a protective order
       under Rule 201(c), we have necessarily determined that there was a sufficient showing to
       sustain the trial court’s decision.
¶ 19        Hall also requested that the trial court bar the use of the video and photos during his
       cross-examination, and has included that issue on appeal also.
¶ 20        It appears that Hall improperly combined a discovery limit request under Rule 201(c)
       with a motion in limine to bar the use of certain evidence during his cross-examination at
       trial. A Rule 201(c) motion limits the breadth of discovery in certain situations (Ill. S. Ct. R.
       201(c)(1) (eff. July 1, 2002)), while a motion in limine is a pretrial motion that seeks to
       exclude inadmissible evidence and prohibits questions concerning such evidence (Schuler,
       313 Ill. App. 3d at 333-34). We find that the question of whether evidence should be
       excluded at trial is more suited for consideration in a motion in limine, where the trial court
       can determine the admissibility of such evidence. See Cunningham v. Millers General
       Insurance Co., 227 Ill. App. 3d 201, 205 (1992). As such, we find that it was not properly
       before the trial court under the umbrella of a Rule 201(c) motion and, consequently, is not
       properly before this court on an interlocutory appeal.
¶ 21        Based on our disposition regarding Hall’s Rule 201(c) request for a protective order, we
       direct the circuit court to vacate the contempt order.

¶ 22                                    CONCLUSION
¶ 23      For the foregoing reasons, the circuit court of Cook County’s order denying defendant’s
       Rule 201(c) motion is affirmed and the circuit court’s order of contempt is vacated.

¶ 24       Affirmed; contempt order vacated.




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