Pump Manufacturer Withstands Challenge to Protective Order, Loses Personal Jurisdiction Argument

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Appellate Court of Illinois, Fifth District, August 24, 2020

The Appellate Court of Illinois, Fifth District, recently issued a discovery decision in the matter of Linder v. A.W. Chesterton Co., which also touched on the issue of personal jurisdiction. In Linder, the plaintiffs alleged that asbestos dust attributable to industrial pumps manufactured by GIW contributed to plaintiff decedent, Robert Linder’s mesothelioma. At the outset of the case, GIW filed a motion to dismiss for lack of personal jurisdiction, arguing that as a Georgia corporation with a principal place of business in Georgia, it was not subject to general personal jurisdiction in Illinois. With regard to specific personal jurisdiction, GIW argued that it did not commit a tortious act pursuant to section 2-209(a)(2) of the Illinois Code of Civil Procedure. While GIW sold pumps to Linder’s employer, Peabody Coal Company, GIW’s Bills of Material established that those pumps were shipped without asbestos-containing component parts. The circuit court ultimately denied GIW’s motion, finding that the plaintiffs had made a prima facie showing as to specific jurisdiction.  

During discovery, the plaintiffs requested the production of all Bills of Material created by GIW, for every pump ever sold, so that they could test GIW’s assertion regarding the shipment of pumps without asbestos-containing component parts. GIW maintained that there were almost 5,000 Bills of Materials in its records, spanning 100 years. Notwithstanding, the court granted the plaintiffs’ request, in part, and ordered the production of all Bills of Materials for pumps sold between 1967 and 1986—the time period during which GIW sold pumps to Peabody.

GIW subsequently filed a motion for a protective order, requesting that the court prohibit the dissemination of the Bills of Material outside of the litigation, arguing that they contained proprietary information. The plaintiffs opposed, arguing that the information contained in the Bills of Materials was “stale,” and any claims that the information contained therein was proprietary was speculative, as GIW presented no evidence that disclosure would harm its commercial interests. Notwithstanding, the plaintiffs did not articulate any specific purpose for which they needed or wanted to use the Bills of Material outside of the litigation.

Following a hearing, the circuit court granted GIW’s motion for a protective order, allowing the plaintiffs to use the Bills of Material in the litigation at issue, but prohibiting the plaintiffs from publishing them without the consent of GIW or leave of court. The plaintiffs filed an interlocutory appeal of the protective order, and then GIW filed a motion to stay or dismiss the appeal on the grounds that it was not subject to personal jurisdiction. GIW argued that because the court lacked personal jurisdiction over it, the court lacked jurisdiction to determine the propriety of the circuit court’s protective order.

At the outset, the Fifth District held that personal jurisdiction over GIW was not required to resolve the appeal, as the plaintiffs, who were Illinois residents, sought review of an order that prevented them from disclosing information. As such, the result of the appeal would not result in a judgment against GIW, but rather solely governed the conduct of the plaintiffs.

Next, the Fifth District held that GIW’s contention plaintiffs must prove that it committed a tortious act within the state of Illinois for conveyance of specific personal jurisdiction was incorrect, opining that while that is one way to establish personal jurisdiction, it is not the only way. Illinois’ specific jurisdiction statute contains a “catchall” provision authorizing the court to exercise personal jurisdiction “on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.” This, the court held, authorizes specific jurisdiction following a showing that the defendant purposefully directed its activities to Illinois and the cause of action arose out of or related to the defendant’s contacts with Illinois.

Here, GIW did not dispute that it sold industrial pumps to Peabody in Illinois. As the plaintiffs alleged that those pumps contained asbestos, that alone was enough for the circuit court to exercise specific personal jurisdiction. While the plaintiffs must prove that the pumps contained asbestos in order to establish liability, personal jurisdiction was established simply by a showing that GIW sold the pumps at issue in Illinois. As such, GIW’s motion to dismiss or stay the case was denied.

Finally, with regard to the plaintiffs’ appeal of the circuit court’s protective order, the Fifth District held that the parameters of protective orders are within the trial court’s discretion, and without being presented with any evidence that the plaintiffs needed or were interested in disclosing the information subject to the protective order, it was unable to say that the circuit court abused its discretion in issuing same.