specially concurring:
This was a contributory negligence case. The ultimate question before us is whether the defendant’s fractional discovery prejudiced this plaintiff. In the final analysis I think not. However, as is indicated by the majority, “indeed, the evidence presents a close case, ***.” The critical fact is whether the motorcycle was headed north in its proper lane. No photograph of the damaged area of the motorcycle was produced by the company. Only a photograph of the undamaged rear of the motorcycle was produced.
This close case deserves more careful scrutiny for a special reason — here we have a common insurer, insuring both the plaintiff and the defendant. We know from Monier v. Chamberlain (1966), 35 Ill. 2d 351, 221 N.E.2d 410, that absolute good faith and a stricter standard of disclosure is necessary in such cases. With these principles in mind, and considering that the objective of discovery is disclosure, I have painstakingly reviewed the record. The question thus is whether this insured did in fact comply with the standard of disclosure applicable to this case. There is evidence of noncompliance. In his post-trial motion the plaintiff requests appropriate sanctions for failure to make good faith discovery. Consideration must be given to whether the noncompliance was so substantial as to have been prejudicial.
About a month after the accident, on May 6, 1977, the insurance company determined that it also insured Mr. Twaddle. Prior thereto Mr. Twaddle cooperated with the company, giving a statement regarding the incident, and submitting bills and medical reports regarding his injuries. Ultimately, during October 1977, Mr. Twaddle engaged counsel to represent him, suit was filed several months later, and about two years thereafter interrogatories were propounded to Diane Litchfield, the defendant. In response, the defendant, with the aid of insurance company counsel, responded that 10 photographs were taken “right after the accident” by the insurance company.
As the trial commenced, in August 1980, only seven original photographs were given over to plaintiff’s trial counsel by the insurance company’s defense counsel in compliance with plaintiff’s discovery requests and for possible introduction into evidence. Legends on the back of some of the photographs were then revealed for the first time. The trial court indicates that all parties concerned were genuinely surprised. This was the first and only evidence of the skid marks put down by the defendant’s automobile, obviously a fact of more than passing importance. No skid marks were noted on the police report.
The foregoing, constituting at the very least less than full discovery of investigative matters when total discovery is required by the common insurance carrier, prompted post-trial proceedings by the plaintiff in an attempt to prove that the company denied him access to materials to which he was entitled in preparation for trial against another insured. He asked only for the company’s investigative file as it existed prior to the date he engaged counsel in October of 1977. The opinion of the trial judge was that the discovery matters in the case were “highly disputed” and merited a full hearing.
I have scrutinized the impounded files and find no reference disclosing anything more than that some photographs were taken by one of two investigating company adjusters, apparently within two days following the accident, “probably the day that [they] learned of the accident.” The company transmittal photo envelope included in one of the impounded files had no blanks completed regarding the number of photographs taken, or otherwise. It bore only the legend “Sayers,” the name of the defendant Litchfield as of her marriage on June 17, 1978 — about one year after the accident.
Near the end of that lengthy post-trial hearing the insurance defense counsel refused to allow his and his company’s entire files to be viewed in camera by the court. It appears that there were three, or possibly four, company files in all. The trial judge, Judge Charles Wilhelm, in attempting to fashion a remedy for which there are no post-trial discovery rules, settled for defense counsel’s interpretation of what was his own work product and what was the content of his client’s investigative files. The record does not support the majority’s assertion that the trial judge ever had an opportunity to review the entirety of the files. My review of the record indicates that the trial court permitted defense counsel to extract from the files any of those parts that he, the defense counsel, chose to cull out. In my opinion, that was error. To distinguish relevant investigative information from nondiscoverable privileged matters and work product is properly the chore of the trial court.
Finally the trial judge, in denying the post-trial motion of the plaintiff, wrongly indicates that the entire file was requested to be discovered by the plaintiff. The record supports that only the investigative file, prior to the date the matter became an adversary proceeding, in October of 1977, was requested, and that except for copies of two letters he was refused access. The response was inadequate. The motion for reconsideration was filed in response to that denial, but no transcript is found in the record on review of that hearing. The motion to reconsider was denied, but we do not have the benefit of the court’s reasoning therefor.
Nonetheless, in this case, since I am convinced that the plaintiff was not prejudiced, I do not believe that the severe sanction of a new trial would be appropriate.
I, therefore, concur in the result reached by the majority.