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No. 2--04--0162

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

In this appeal, we consider whether a party to a proceeding before the Industrial Commission(Commission) under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (2002)) maymaintain an independent equitable action for the sole purpose of obtaining discovery germane to theworker's compensation proceeding. We conclude that, based upon the facts in this case, the answeris no.

In April 2003, plaintiff, Shawn Walton, filed an equitable bill of discovery in the circuit court ofDu Page County against defendants, Illinois Bell Telephone Company, a/k/a Ameritech Illinois andSBC Ameritech (SBC), and Sedgwick Claims Management Services (Sedgwick). Plaintiff allegedthat in January 2001, while employed by SBC as a field technician, he suffered a work-related injuryas a result of falling from a ladder. Plaintiff filed a claim against SBC for compensation with theCommission. According to plaintiff, Sedgwick was responsible for administering worker'scompensation benefits on behalf of SBC. Plaintiff submitted himself to an independent medicalexamination performed by Dr. Gary S. Skaletsky, who determined that plaintiff was disabled fromwork and in need of surgery. Later, however, defendants conducted videotaped surveillance ofplaintiff and provided the videotape to Dr. Skaletsky. Dr. Skaletsky then revised his earlier opinionand concluded that plaintiff's injury was not disabling. Plaintiff alleged that defendants had refusedto provide a copy of the videotape to him and that he needed access to the tape prior to the hearingon his worker's compensation claim in order to prepare for the examination of his treating physicianand the cross-examination of Dr. Skaletsky. Plaintiff contended that there was no mechanism forobtaining discovery of the videotape within the worker's compensation proceeding, and he requestedthat the court enter an order requiring defendants to produce the videotape, as well as any statementsfrom witnesses to his accident and all other "investigative materials."

Defendants moved to dismiss the bill. The motion did not indicate which section of the Codeof Civil Procedure (Code) (735 ILCS 5/1--101 et seq. (West 2002) ) it was brought under. The trialcourt denied the motion and ordered defendants to answer or otherwise plead. Defendants then fileda second motion to dismiss, this time pursuant to section 2--619 of the Code (735 ILCS 5/2--619(West 2002)), contending that "[plaintiff's] exclusive remedy for all matters pertaining to this Bill ofDiscovery lies with the Illinois Industrial Commission." In response, plaintiff moved for summaryjudgment. At the hearing on the motions, plaintiff's attorney indicated that he envisioned that the trialcourt would rule not only on the summary judgment motion but also on the underlying bill ofdiscovery. Plaintiff's attorney advised the court:

"[I]f you're going to deny my Summary Judgment Motion really there's no facts that wouldever result in a trial here[.] [D]eny the bill of discovery, as well, and we can go straight up toan appeal on it."

The trial court entered an order denying both the summary judgment motion and the underlying billof discovery. Plaintiff filed a timely notice of appeal.

Initially, we note that plaintiff's brief does not contain a statement of the standard of reviewas required by Supreme Court Rule 341(e)(3) (Official Reports Advance Sheet No. 21 (October 17,2001), R. 341(e)(3), eff. October 1, 2001). The omission is problematic given the somewhat irregularprocedure followed in the trial court. At plaintiff's invitation, the trial court "denied" plaintiff's billof discovery, but the court did not specify any procedural basis for the "denial."⁽¹⁾ In our view,however, the trial court's ruling was tantamount to a dismissal under section 2--615 of the Code (735ILCS 5/2--615 (West 2002)) for failure to state a cause of action. The trial court essentially ruled,as a matter of law, that a party to a worker's compensation proceeding may not use an equitable billof discovery to expand the scope of discovery available under the Commission's procedural rules. As such, the court's analysis focused on the legal sufficiency of plaintiff's bill, which is the subject ofa section 2--615 motion. Cohen v. McDonald's Corp., 347 Ill. App. 3d 627, 632 (2004) ("A motionto dismiss under section 2--615 of the Code tests the legal sufficiency of a pleading"). We review denovo a dismissal under section 2--615. Maras v. Milestone, Inc., 348 Ill. App. 3d 1004, 1007 (2004).

The equitable bill of discovery is an artifact of the era preceding the liberal allowance ofdiscovery in the courts:

"The origin of the bill may be traced to old, rigid common-law rules under which an adverseparty could not be compelled to produce documents for use in litigation. To cure thisshortcoming, equity courts created the bill of discovery as an exercise of auxiliary jurisdictionto compel discovery in aid of actions at law." R. Barron, Existence and Nature of Cause ofAction for Equitable Bill of Discovery, 37 A.L.R. 5th 645, 658 (1996).

See also Guertin v. Guertin, 204 Ill. App. 3d 527, 529 (1990) (At common law, courts had no powerto compel a party to answer interrogatories; bills of discovery were made ancillary to already pendingclaims for substantive legal or equitable relief, and were used to enable a plaintiff to obtaininformation and prepare his cause for trial on the ultimate issues). Although modern discoverypractices have largely supplanted the bill of discovery (see Guertin, 204 Ill. App. 3d at 531), Illinois(see Brandenburg v. Buda Co., 299 Ill. 133, 138-40 (1921)) and the majority of other jurisdictions(see R. Barron, Existence and Nature of Cause of Action for Equitable Bill of Discovery, 37 A.L.R.5th 645, 658 (1996)) still permit resort to the bill of discovery in some circumstances.

Inasmuch as the bill of discovery is an exercise of auxiliary or ancillary jurisdiction, it wouldseem to presuppose the actual or potential exercise of primary jurisdiction by some tribunal. Evenapart from the merger of law and equity, the existence of concurrent legal and equitable jurisdictionhas been recognized in some circumstances. 27A Am. Jur. 2d Equity