No Bad Faith in Post-Production Challenge to Documents Based on Relevance
This case involves allegations of bad faith relating to a discovery dispute of the production of over 5,000 index cards by a defendant manufacturer involved in an asbestos products liability case. Despite concerns regarding customer confidentiality, the defendant initially produced, without reservation, over 90,000 index cards to plaintiff, 5,077 of which plaintiff marked for copying. The manufacturer refused to copy 5,064 cards based on relevance. After a flurry of motions to compel and for protective orders confounded by allegations of bad faith the court found the manufacturer in “friendly contempt” and assessed a $1 fine. The Illinois Appellate Court ruled the manufacturer forfeited its right to review certain documents for relevance before producing them to the plaintiff by not seeking the court’s ruling on such a reservation before production. Notwithstanding this, it deemed defendant’s refusal a good-faith effort to test the correctness of the order on appeal and vacated the contempt finding. The moral of this story: no matter how onerous the document production, litigants must reserve their rights to object on any basis before production.