concurring in part and dissenting in part:
I concur with the majority’s disposition of the issue of sovereign immunity. As to its disposition of this Rule 224 petition, however, I dissent.
I noted in my dissent in Roth v. St. Elizabeth’s Hospital (1993), 241 Ill. App. 3d 407, that the majority has focused exclusively on “identity” unmodified by responsibility in damages as stated in Rule 224 (134 Ill. 2d R. 224); the command of the rule is to be read as a whole. In pertinent parts, it states:
“Rule 224. Discovery Before Suit to Identify Responsible Persons and Entities
(a) Procedure.
(1) Petition.
(i) A person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery.
(ii) The action for discovery shall be initiated by the filing of a verified petition in the circuit court of the county in which the action or proceeding might be brought or in which one or more of the persons or entities from whom discovery is sought resides. The petition shall be brought in the name of the petitioner and shall name as respondents the persons or entities from whom discovery is sought and shall set forth: (A) the reason the proposed discovery is necessary and (B) the nature of the discovery sought and shall ask for an order authorizing the petitioner to obtain such discovery. The order allowing the petition will limit discovery to the identification of responsible persons and entities and where a deposition is sought will specify the name and address of each person to be examined, if known, or, if unknown, information sufficient to identify each person and the time and place of the deposition.” (Emphasis added.) 134 Ill. 2d R. 224.
The committee comments similarly indicate the intent that identity be modified and the phrase read as a whole:
“New Rule 224 was adopted effective August 1, 1989. This rule provides a tool by which a person or entity may, with leave of court, compel limited discovery before filing a lawsuit in an effort to determine the identity of one who may be liable in damages. The rule is not intended to modify in any way any other rights secured or responsibilities imposed by law. It provides a mechanism for plaintiffs to ascertain the identity of potential defendants in a variety of civil cases, including Structural Works Act, products liability, malpractice and negligence claims. The rule will be of particular benefit in industrial accident cases where the parties responsible may be known to the plaintiffs employer, which may immunize itself from suit. The rule facilitates the identification of potential defendants through discovery depositions or through any of the other discovery tools set forth in Rules 201 through 214. The order allowing the petition will limit discovery to the identification of responsible persons and entities. Therefore, Supreme Court Rule 215, dealing with mental and physical exams, and Supreme Court Rule 216, dealing with requests to admit, are not included as means of discovery under this rule.” (Emphasis added.) Ill. Ann. Stat., ch. 110A, par. 224, Committee Comments, at 182 (Smith-Hurd Supp. 1992).
As I noted in detail in my dissent in Roth v. St. Elizabeth’s Hospital, neither Shutes v. Fowler (1991), 223 Ill. App. 3d 342, 584 N.E.2d 920, nor Guertin v. Guertin (1990), 204 Ill. App. 3d 527, 561 N.E.2d 1339, construes Rule 224 as limited to identity without considering whether the party identified may be responsible in damages and thus, appropriately, a defendant. Shutes considered Rule 224’s validity, and in Guertin identity and the “grounding in fact” to make this person a defendant were already known.
As our supreme court noted in De Luna v. St. Elizabeth’s Hospital (1992), 147 Ill. 2d 57, 588 N.E.2d 1139:
“The requirement imposed by section 2 — 622 in healing art malpractice cases serves the same end as that of other provisions that have as their purpose the elimination or curtailment of frivolous actions. In all cases there already exists a separate obligation that attorneys, and pro se litigants as well, ensure that ‘every pleading, motion, and other paper’ they sign is based on fact and made in good faith. (Ill. Rev. Stat. 1987, eh. 110, pars. 2-611, 2 — 611.1; 134 Ill. 2d R. 137 (preempts section 2 — 611).) Patterned after section 2 — 611 of the Code of Civil Procedure, Supreme Court Rule 137 provides, in pertinent part:
‘The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.’
Under Rule 137, sanctions may be imposed for violations of its provisions.
While the consequences of noncompliance with Supreme Court Rule 137 and section 2 — 622 are different, the burdens imposed by the two provisions are similar. In fact, obtaining a health professional’s review pursuant to section 2 — 622 would appear, in many cases, to be a necessary concomitant of fulfilling the separate obligation, imposed first by statute and now by rule, requiring that pleadings, motions, and other papers be based on fact and filed in good faith. It would be inconsistent to require parties in all instances to undertake reasonable investigation of the grounds for their actions, yet invalidate what would only be a reasonable step in that process in cases involving healing art malpractice.” 147 Ill. 2d at 70-71, 588 N.E.2d at 1145.
I respectfully suggest it would similarly be inconsistent to require a party to undertake reasonable inquiry as to the facts underlying his potential libel action, yet so severely restrict the major tool for that investigation that the essential underlying fact, the alleged statement, is denied to him. Petitioner’s counsel stated in oral argument that he needed the statement in order to determine under Rule 137 whether his client had a cause of action for libel and would advise him accordingly. By our ruling today, we have prevented a conscientious attorney from discharging his professional obligations pursuant to supreme court rule.