Criminal Contempt Use May Prod Discovery

One of the most troubling aspects of Illinois civil practice in recent years is attorneys’ willfully withholding or destroying evidence prior to or during discovery.

If violations are based on a lack of clarity in the law, particularly when the law is developing, it should be left to the judge to determine whether the attorney’s actions and the notice to the opposing party were reasonable and in good father. But, when the actions are calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity, harsh sanctions are in order.

Illinois Supreme Court Rule 219(c) gives courts the inherent power to stop such conduct where a party is unreasonably noncompliant with discovery rules or orders of the court. To determine whether noncompliance is unreasonable, the standard is whether the conduct of the noncomplying party shows a deliberate, contumacious or unwarranted disregard for the court’s authority. Scattered Corp. v. Midwest Clearing Corp., 299 Ill.App.3d 653, 702 N.E.2d 267 (1st Dist. 1998).

Under Rule 219(c), the court can enter remedies including staying further proceedings until compliance, barring the offending party from filing other pleadings relating to the issue in question, barring witnesses from testifying, entering a default judgment, even striking the offending pleadings relating to that judgment.

Besides imposing fines or attorneys’ fees, the court also may enter such "orders as are just" to compensate the opposing party for its costs when the offending party’s misconduct causes a delay in the matter’s coming to trial. The rule was amended in 1996 to provide courts yet additional tools for sanctioning improper conduct.

Sometimes, however, Rule 219 is not enough. Illinois courts have repeatedly stated that the purpose of sanctions for discovery violations under that rule is to accomplish discovery rather than to inflect punishment.

Attorneys should consider bringing a motion for criminal contempt of court in civil actions when an opponent’s actions amount to brining the administration of law into disrepute. Although not often used as a tool to force compliance with discovery rules, the law of contempt in this area is well-established in Illinois.

Four categories of contempt exist in this state: indirect civil, direct civil, indirect criminal and direct criminal.

The primary determinant of whether contempt proceedings are civil or criminal in nature is the purpose for which contempt sanctions are imposed. If they are imposed for coercive purposes – that is, to compel the contemnor to perform a particular act – the contempt is civil in nature. In such cases, the contemnor can purge himself of contempt by complying with the pertinent court order. In re Marriage of Logston, 103 Ill.2d 266, 469 N.E.2d 167 (1984).

Criminal contempt is directed against the dignity and authority of the court. Generally, it is imposed to punish past conduct. City of Rockford v. Suski, 307 Ill.App.3d 233, 718 N.E.2d 269 (2d Dist. 1999).

And, at times, punishment is necessary. As the court in Transamerica Insurance Group v. Lee, 164 Ill.App.3d 945, 518 N.E.2d 413 (1st Dist. 1987), noted, "The worst penalty [for a discovery violation] is the payment of a nominal fine. Meanwhile, the opposing party may well have been forced to trial without truth, and truth is the heart of all discovery. ... In choosing an appropriate sanction, the trial court should consider whether the sanction will discourage the offending party from coldly considering discovery violations in a ‘cost-effective manner.’" Id., at 416 [citation omitted].

In a vigorous dissent, Illinois Supreme Court Justice Mary Ann McMorrow aptly pointed out that the purpose of a "just" sanction under Rule 219(c) is "to accomplish discovery rather than inflict punishment." Id., at 417-18 [citations omitted]. That is where criminal contempt can step in.

To sustain a finding of criminal contempt, an intent and an act must be proved beyond a reasonable doubt. Intent in these cases has been defined as a voluntary act by one who knows or who should reasonably know that the act is wrongful. In re Marriage of Bartlett, 305 Ill.App.3d 28, 31, 711 N.E.2d 460 (2d Dist. 1999).

Direct criminal contempt occurs in the presence of the judge. For example, a judge sua sponte entered an order asking for a party to be examined by a psychiatrist; and the attorney blurted out in open court, "I will be asking for one for you, Judge; have that on the record." People v. Kaeding, 239 Ill.App.3d 851, 607 N.E.2d 580 (2d Dist. 1993). The attorney was fined, and he was incarcerated for six months.

Often of greater concern is indirect criminal contempt because all or an essential part occurs out of the presence of the court. Obtaining the evidence then becomes almost a mini-trial to prove to the court that the contemnor’s actions obstructed the administration of justice. The destruction, fabrication or alteration of evidence or the hiding of a key witness are examples of situations for which criminal contempt proceedings may be proper to obtain the truth.

The purpose of discovery is to facilitate trial preparation and promote the fact finding process. To eliminate any tactical advantage or surprise to either side, the justice system relies upon parties to be open and forthright in their disclosing evidence that is relevant to the issues expected to come up at trial.

An examination of Illinois case law reveals that courts of review are strongly supportive of trial courts’ rulings designed to vigorously enforce discovery rules and protect the discovery process from abuse.

However, when a party is not being reasonably compliant with discovery rules, it is up to the opposing litigant to make the court aware that the system is being abused in good faith to act as an advocate for one’s client. And, it may mean getting tough.

Criminal contempt proceedings should be considered by counsel when the actions of an opponent or, of even greater concern, the opponent’s client abuse the administration of justice. Although criminal contempt proceedings appear to be rarely invoked in civil cases as a method to enforce discovery procedures, trial attorneys should consider this as a tool to prod some reluctant litigators into being more responsible.