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[W] Adams v. Bath and Body Works3/17/2005
BR>
However, even where evidence is destroyed, altered, or lost, a defendant is not automatically entitled to a specific sanction. Stringer, 351 Ill. App. 3d at 1139. Rather, Illinois Supreme Court Rule 219(c) grants the circuit court the discretion to impose a sanction, including dismissal of the cause of action, upon any party who unreasonably refuses to comply with any discovery rule or any order entered pursuant to such rule. Shimanovsky, 181 Ill. 2d at 120, citing 166 Ill. 2d R. 219(c).
In fashioning an appropriate sanction, a trial court must consider the following: (1) the surprise to the adverse party; (2) the prejudicial effect of the proffered testimony or evidence; (3) the nature of the testimony or evidence; (4) the diligence of the adverse party in seeking discovery; (5) the timeliness of the adverse party's objection to the testimony or evidence; and (6) the good faith of the party offering the testimony or evidence. Boatmen's National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314, 614 N.E.2d 1194 (1993). Of these factors, none is determinative. In re Estate of Kline, 245 Ill. App. 3d 413, 433 (1993).
Moreover, in crafting a just order, the circuit court must remember that the purpose of a sanction is not merely to punish the dilatory party, but to effectuate the goals of discovery. See Buffington v. Yungen, 322 Ill. App. 3d 152, 154, 748 N.E.2d 844 (2001). A just order is one that is "commensurate with the seriousness of the violation" (Hanley v. City of Chicago , 343 Ill. App. 3d 49, 55, 795 N.E.2d 808 (2003)), and "ensures both the accomplishment of discovery and a trial on the merits" (Buffington, 322 Ill. App. 3d at 154).
That being said, because an order to dismiss with prejudice is a drastic sanction (as its nickname, the "death penalty" of sanctions, suggests), it should be invoked "only in those cases where the party's actions show a deliberate, contumacious or unwarranted disregard of the court's authority"; employed only "as a last resort and after all the court's other enforcement powers have failed to advance the litigation." Shimanovsky, 181 Ill. 2d at 123.
The reversal of a trial court's imposition of a particular sanction is only justified when the record establishes a clear abuse of discretion. Boatmen's National Bank, 155 Ill. 2d at 314. To determine if the trial court abused its discretion, a reviewing court must look to the criteria upon which the trial court relied in making its determination. Shimanovsky, 181 Ill. 2d at 123. Plaintiff's conduct here, though potentially negligent, could hardly be characterized as "deliberate, contumacious, or unwarranted disregard of the court's authority."
First, plaintiff did not engage in any "knowing and willful defiance of the discovery rules or the trial court's authority." Shimanovsky, 181 Ill. 2d at 129. The destruction of the end table, couch and carpet occurred long before plaintiff filed his lawsuit. Second, the carpet belonged to Kubasak, and it is questionable whether he could have compelled her to preserve it. Third, even if he could have preserved this evidence, plaintiff had no knowledge that it might have been relevant and material; his initial theory was that two lamps, recovered by his attorney shortly after the fire, had been the cause. Finally, and perhaps most importantly, plaintiff played no role in, nor had any notice of, the destruction of the evidence which defendants claim was essential to their defense. Stringer, 351 Ill. App. 3d at 1139-40 (stating that "Rule 219(c) permits sanctions only where a party unreasonably fails to comply with a discovery order" and that a "party who had nothing to do with the destruction of evidence cannot be said to have unr
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