{ "id": 257143, "name": "DONALD AVERY et al., Plaintiffs, v. MICHELLE A. SABBIA, Defendant-Appellant (David P. Calimag, Movant-Appellee)", "name_abbreviation": "Avery v. Sabbia", "decision_date": "1998-12-01", "docket_number": "No. 1\u201497\u20144166", "first_page": "839", "last_page": "849", "citations": [ { "type": "official", "cite": "301 Ill. App. 3d 839" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "558 N.E.2d 318", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "322" } ], "opinion_index": 0 }, { "cite": "200 Ill. App. 3d 908", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2463079 ], "year": 1990, "pin_cites": [ { "page": "915" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/0908-01" ] }, { "cite": "606 N.E.2d 400", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "420" } ], "opinion_index": 0 }, { "cite": "239 Ill. App. 3d 211", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5148997 ], "year": 1992, "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0211-01" ] }, { "cite": "519 N.E.2d 476", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "481" } ], "opinion_index": 0 }, { "cite": "166 Ill. App. 3d 83", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5072861 ], "year": 1988, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0083-01" ] }, { "cite": "455 N.E.2d 876", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 1002", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5659750 ], "year": 1983, "pin_cites": [ { "page": "1011" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/1002-01" ] }, { "cite": "493 N.E.2d 1075", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "1077" }, { "page": "1077" }, { "page": "1078" } ], "opinion_index": 0 }, { "cite": "112 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5537875 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "499" }, { "page": "499" }, { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0494-01" ] }, { "cite": "349 N.E.2d 28", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "63 Ill. 2d 454", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5427873 ], "year": 1976, "pin_cites": [ { "page": "461-62" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0454-01" ] }, { "cite": "467 U.S. 20", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6193483 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "36" }, { "page": "29" }, { "page": "2209" }, { "page": "36" }, { "page": "29" }, { "page": "2209" } ], "opinion_index": 0, "case_paths": [ "/us/467/0020-01" ] }, { "cite": "506 N.E.2d 691", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1987, "pin_cites": [ { "page": "694" }, { "page": "694" }, { "page": "694" }, { "page": "694" }, { "page": "694" }, { "page": "694" } ], "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 1018", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3608819 ], "weight": 6, "year": 1987, "pin_cites": [ { "page": "1021" }, { "page": "1021" }, { "page": "1021" }, { "page": "1022" }, { "page": "1021" }, { "page": "1021" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/1018-01" ] }, { "cite": "172 N.E.2d 370", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "29 Ill. App. 2d 52", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5221038 ], "year": 1961, "pin_cites": [ { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/29/0052-01" ] }, { "cite": "384 N.E.2d 34", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "36" } ], "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 400", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3321580 ], "year": 1978, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0400-01" ] }, { "cite": "638 N.E.2d 1127", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "1139" }, { "page": "1139" } ], "opinion_index": 0 }, { "cite": "265 Ill. App. 3d 806", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872477 ], "year": 1994, "pin_cites": [ { "page": "823" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0806-01" ] }, { "cite": "367 N.E.2d 422", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "423" }, { "page": "423" } ], "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 963", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3384832 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "965" }, { "page": "965" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0963-01" ] }, { "cite": "491 N.E.2d 150", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "153" }, { "page": "153" }, { "page": "153" } ], "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 87", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3448273 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "91" }, { "page": "91" }, { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0087-01" ] }, { "cite": "445 N.E.2d 791", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "792" }, { "page": "792" }, { "page": "792" } ], "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 647", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5434525 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "649" }, { "page": "649" }, { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0647-01" ] }, { "cite": "18 U.S.C. \u00a7 1962", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1996, "opinion_index": 0 } ], "analysis": { "cardinality": 962, "char_count": 22163, "ocr_confidence": 0.776, "pagerank": { "raw": 1.3077064859452313e-07, "percentile": 0.6237116526870872 }, "sha256": "0752c4b293953946712534002811ace0e5153cfaca1546eedb7545878900b79f", "simhash": "1:9a7efd707f468ce5", "word_count": 3696 }, "last_updated": "2023-07-14T19:13:21.929948+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DONALD AVERY et al., Plaintiffs, v. MICHELLE A. SABBIA, Defendant-Appellant (David P. Calimag, Movant-Appellee)." ], "opinions": [ { "text": "JUSTICE COUSINS\ndelivered the opinion of the court:\nPlaintiffs (who are not a party to this appeal) filed a negligence action against defendant, Michelle Sabbia, for injuries resulting from an automobile accident. After discovery was closed, the trial court granted defendant\u2019s motion to reopen discovery for the limited purpose of deposing plaintiffs\u2019 treating physicians, including Dr. David P. Calimag. Thereafter, Dr. Calimag made a motion for a full protective order of his discovery deposition taken May 3, 1997, which was granted until further order of court. On appeal, defendant contends that: (1) the trial court abused its discretion in sealing Dr. Calimag\u2019s deposition transcript as no legal basis existed for the trial court\u2019s order; and (2) this matter should have been considered by the United States District Court before which an action under the Racketeer Influenced and Corrupt Organizations (RICO) Act (18 U.S.C. \u00a7 1962 (1996)) was pending.\nBACKGROUND\nOn May 11, 1993, plaintiffs Donald Avery, Patrick Watts and Quin-tin Wilkerson were involved in an automobile accident with defendant Michelle Sabbia. Three days later, on May 14, 1993, at the request of a referring doctor, Dr. David P Calimag examined Watts and Wilkerson and performed electromyography (EMG) examinations on both to test for nerve damage. The results of Dr. Calimag\u2019s neurological consultations indicated that plaintiffs\u2019 muscles were \u201cnormal.\u201d\nOn July 13, 1994, plaintiffs filed suit against defendant. Discovery in the case was closed on March 17, 1995, and the case went to mandatory arbitration on April 20, 1995. The arbitrators found in favor of plaintiffs and awarded each plaintiff $1,000. Plaintiffs, however, rejected the arbitration award.\nOn September 12, 1996, defendant moved to reopen discovery for the limited purpose of deposing plaintiffs\u2019 treating physicians, including Dr. Calimag. Defendant specifically indicated that she wanted to depose Dr. Calimag to determine what afflictions he was ruling out by performing EMG studies on each patient. The trial court granted the motion on October 21, 1996.\nTwo weeks following the defendant\u2019s motion to reopen discovery, defendant\u2019s insurance carrier, State Farm Mutual Automobile Insurance Company (State Farm), filed a lawsuit in federal court against approximately 30 doctors and lawyers, including Dr. Calimag. In the federal case, State Farm sued under the RICO act, alleging that certain individuals staged automobile accidents to obtain money from State Farm under false pretenses. The allegations against Dr. Calimag were that he conducted and/or billed for unnecessary examinations of alleged patients who were referred to him by doctors higher up in the conspiracy chain. The federal case also listed over 500 accidents that it claimed were part of the scheme, including the accident in the present case.\nAs a result of Dr. Calimag being noticed for six different state court personal injury depositions at or around the same time the federal case was filed, counsel for Dr. Calimag filed numerous motions praying for protective orders that would seal the doctor\u2019s deposition transcripts for use in only each pending action. Dr. Calimag asserted, in each case, that he believed State Farm engaged its attorneys'to take multiple depositions of Dr. Calimag for the purpose of obtaining discovery for the pending federal case and not for the purpose of obtaining discovery in the state court personal injury cases.\nOn January 27, 1997, Dr. Calimag filed his first motion for a protective order in this case that sought to restrict the use of his deposition to the case before the trial court and not allow defendant\u2019s attorney to give the deposition to State Farm to be used in the prosecution of the pending federal case. Dr. Calimag specifically alleged that the attempt to depose Dr. Calimag: (1) was a misuse of state court discovery procedures since State Farm hired defendant\u2019s attorney to defend her case; (2) improperly taxed the resources of the state courts for discovery that should be taken in federal court; and (3) gave State Farm the opportunity to unfairly take multiple depositions of Dr. Calimag for use in the federal case, in violation of Supreme Court Rule 201(c) (134 Ill. 2d R. 201(c)).\nAt the hearing on the motion, the trial court determined that there was insufficient evidence showing that State Farm was taking Dr. Calimag\u2019s deposition for use in the federal case. In an attempt to eliminate questions not relevant to the case at hand, the court ordered that a limited deposition proceed in the court\u2019s presence on May 3, 1997, without a protective order.\nFollowing completion of the deposition, Dr. Calimag filed a motion for a full protective order regarding the deposition transcript, which would limit the use of his deposition to the case before the court. Dr. Calimag asserted that State Farm\u2019s failure to settle the case was further indicia that Dr. Calimag\u2019s deposition was taken for the purpose of using it in the federal RICO action, which illustrates an abuse of the discovery process of the circuit court.\nAt the September 12, 1997, hearing on Dr. Calimag\u2019s motion, the trial court granted plaintiffs\u2019 motion to vacate their rejection of the arbitration award. Thereafter, on October 10, 1997, the trial court granted Dr. Calimag\u2019s motion for full protective order sealing the deposition transcript until further order of the court. Defendant appeals from this order.\nAfter defendant initiated her appeal, on July 31, 1998, the federal court dismissed all charges against Dr. Calimag in the federal case, with prejudice, based upon a settlement agreement between the parties. As a result, defendant moved this court to supplement the record on appeal with the federal court order. On October 20, 1998, this court denied defendant\u2019s motion, without prejudice, subject to her compliance with Rule 324 (134 Ill. 2d R. 324), which permits the clerk of the trial court to certify the record on appeal.\nOn October 30, 1998, the trial court granted defendant\u2019s motion to amend the record on appeal to include the final judgment order. Pursuant to the trial court\u2019s order, the clerk of the circuit court prepared an amendment to the record on appeal to include the aforementioned federal court order, thereby complying with Rule 324. Defendant then included an additional contention in her reply brief that asserted \u201cwith the settlement and dismissal of the federal RICO action against Calimag, the main reason for sealing Dr. Calimag\u2019s deposition no longer exists.\u201d\nOn November 6, 1998, Dr. Calimag objected to defendant\u2019s motion to supplement the record on appeal and filed a cross-motion to strike both the July 31, 1998, order of the federal court from the record on appeal and section III of defendant\u2019s reply brief, which contains the additional contention.\nWe deny defendant\u2019s motion to supplement the record on appeal, grant Dr. Calimag\u2019s cross-motion to strike section III of the defendant\u2019s reply brief, and affirm the order of the circuit court.\nOPINION\nI\nBefore addressing the legal arguments advanced by the parties, we must first consider defendant\u2019s motion pursuant to Supreme Court Rules 329 and 324 (134 Ill. 2d Rs. 329, 324) for leave to supplement the record on appeal with the final judgment order entered on July 31, 1998, which dismissed Dr. Calimag from the pending federal RICO action. Rule 329 allows the parties to supplement the record with documents that were before the trial court but were not contained in the record on appeal. See State Farm Mutual Automobile Insurance Co. v. Stuckey, 112 Ill. App. 3d 647, 649, 445 N.E.2d 791, 792 (1983). However, matters not properly part of the record and not considered by the trial court will not be considered on review even though included in the record. Stuckey, 112 Ill. App. 3d at 649, 445 N.E.2d at 792; Meyerson v. Software Club of America, Inc., 142 Ill. App. 3d 87, 91, 491 N.E.2d 150, 153 (1986); People v. Sheridan, 51 Ill. App. 3d 963, 965, 367 N.E.2d 422, 423 (1977). Moreover, to the extent that matters in a brief are not supported by the record, a court of review will disregard them. Meyerson, 142 Ill. App. 3d at 91, 491 N.E.2d at 153.\nHere, the federal court order was entered eight months after Dr. Calimag\u2019s motion for a full protective order was granted and defendant\u2019s notice of appeal was filed. Accordingly, as the trial court could not consider the federal court order when ruling on Dr. Calimag\u2019s motion, a court of review will not consider the order in its determination of the merits of the arguments raised on appeal. See Stuckey, 112 Ill. App. 3d at 649, 445 N.E.2d at 792; Meyerson, 142 Ill. App. 3d at 91, 491 N.E.2d at 153; Sheridan, 51 Ill. App. 3d at 965, 367 N.E.2d at 423. As such, defendant\u2019s motion to supplement the record on appeal with the federal court order is denied and Dr. Calimag\u2019s motion to strike section III of defendant\u2019s reply brief is granted.\nII\nThe primary issue before this court is whether the trial court abused its discretion in sealing the deposition transcript of Dr. Calimag. Defendant asserts no legal basis existed for the trial court\u2019s order; however, Dr. Calimag contends that the protective order was sought to bar defendant from misusing the state discovery process as ancillary discovery proceedings for the pending federal RICO action against him.\nAs a general rule, considerable latitude is permitted during discovery and the trial court has broad discretion in ruling on discovery matters. Pickering v. Owens-Corning Fiberglas Corp., 265 Ill. App. 3d 806, 823, 638 N.E.2d 1127, 1139 (1994). Absent an abuse of discretion affirmatively and clearly shown by appellant, the trial court\u2019s order concerning discovery shall not be disturbed on appeal. Pickering, 265 Ill. App. 2d at 823, 638 N.E.2d at 1139; Dobbs v. Safeway Insurance Co., 66 Ill. App. 3d 400, 402, 384 N.E.2d 34, 36 (1978).\nIllinois Supreme Court Rule 201(c)(1) governs when a trial court can issue protective orders and provides:\n\u201c(1) Protective Orders. The court may at any time on its own initiative, or on motion of any party or witness, make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.\u201d 134 Ill. 2d R. 201(c)(1).\nAs stated in paragraph (c) of the committee comments to Rule 201 (134 Ill. 2d R. 201(c)(1), Committee Comments, at 141-42), the rule gives the trial court broad discretion to make protective orders that prevent abuses of the liberal discovery afforded under our discovery rules. See also Stowers v. Carp, 29 Ill. App. 2d 52, 69, 172 N.E.2d 370, 378 (1961); May Centers, Inc. v. S.G. Adams Printing & Stationery Co., 153 Ill. App. 3d 1018, 1021, 506 N.E.2d 691, 694 (1987). Moreover, the nature of a Rule 201(c) order depends on the facts of the particular case (May Centers, Inc., 153 Ill. App. 3d at 1021, 506 N.E.2d at 694); therefore, the trial court is in the best position to weigh fairly the competing needs and interests of parties affected by the discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 81 L. Ed. 2d 17, 29, 104 S. Ct. 2199, 2209 (1984). To accomplish the purpose of discovery procedures, it is necessary that a degree of flexibility be employed in the application of the rules. May Centers, Inc., 153 Ill. App. 3d at 1021, 506 N.E.2d at 694, citing Sarver v. Barrett Ace Hardware, Inc., 63 Ill. 2d 454, 461-62, 349 N.E.2d 28, 31 (1976).\nThe Fifth Illinois Appellate Court District has held that Rule 201(c) requires the party seeking a protective order to show \u201cgood cause.\u201d May Centers, Inc., 153 Ill. App. 3d at 1022, 506 N.E.2d at 694. However, our supreme court in Statland v. Freeman, 112 Ill. 2d 494, 499, 493 N.E.2d 1075, 1077 (1986), has held that \u201cRule 201(c)(1) does not set out any specific requirements for protective orders. There is only the broad standard \u2018as justice requires.\u2019 \u201d (Emphasis added.) Statland, 112 Ill. 2d at 499, 493 N.E.2d at 1077; see also Amoco Oil Co. v. Segall, 118 Ill. App. 3d 1002, 1011, 455 N.E.2d 876, 882 (1983). Statland is instructive in the present case.\nIn Statland, a former law partner sought a writ of mandamus to vacate a protective order entered by the circuit court that prevented him from using documents obtained in discovery from his law partners in an unrelated Internal Revenue Service investigation of his personal tax liability. Our supreme court held that because the trial court was informed both of the nature of the discovered material and that the plaintiff intended to use it in another proceeding, \u201cit cannot be said that the order was improperly entered, and there is no showing of circumstances which would warrant the exercise by this court of its supervisory authority.\u201d Statland, 112 Ill. 2d at 499, 493 N.E.2d at 1078.\nIn the case sub judice, defendant argues that it is not reflected anywhere in the record that defendant or her counsel ever \u201cexpressly\u201d stated that they intended to use Dr. Calimag\u2019s deposition in some other proceeding, much less a federal action in which defendant is not a party. She further contends that the purpose of taking Dr. Calimag\u2019s deposition was simply to defend her in the present case, which allegedly makes Statland inapplicable to the case at bar. However, it must be noted that Dr. Calimag\u2019s neurological consultations with Watts and Wilkerson indicated that their muscles were normal, a fact more favorable to defendant\u2019s contention that she was not negligent in causing the plaintiffs\u2019 injuries. This fact caused concern to the trial court, which commented:\n\u201cTHE COURT: I would say one thing, in being perfectly candid with you, is it did raise my eyebrows when I went and read Dr. Calimag\u2019s examination. I felt it was kind of unusual for a defendant to be deposing a doctor when the doctor\u2019s finding[s] were, at least in my opinion, favorable to the defendant\u2019s case. It showed no neurological involvement. It would be something that *** the defendant would want to emphasize.\n[Plaintiffs] went for this sophisticated test and this test showed [they] had no neurological damage. *** So it does kind of want to raise my eyebrows a little bit saying why would you want to depose someone whose information appears favorable to you unless you want to preserve it in the form of an evidence deposition. There\u2019s been no request for an evidence deposition.\nI would say, sort of subliminally, one could say, well, maybe the purpose of taking this deposition is other than just simply for use in the personal injury case. Because, in my years of practice, it would be kind of unusual for a defendant to be deposing a plaintiff\u2019s doctor where the result of the examination was favorable to the defendant, unless to preserve it.\u201d\nThe trial court found further indicia that defendant had intentions of preserving the deposition for use in another proceeding when plaintiffs moved to vacate their rejection of the arbitration award in an effort to resolve the matter before argument on Dr. Calimag\u2019s motion. Defendant, rather than accept the arbitrator\u2019s settlement amount to avoid going to trial, voiced her intent to reject the award if the court granted plaintiffs\u2019 motion even though the plaintiffs\u2019 motion would have eliminated the need for the deposition transcript. This, again, caused the court to question defendant\u2019s motives:\n\u201cTHE COURT: Let me just ask you quite frankly. Isn\u2019t that sort of a subliminal indication to me that the importance of this case to you or your client is not the individual facts and circumstances of this case, but the larger issue which is boiling out there with the federal court and Dr. Calimag and the litigation that\u2019s pending in the federal court? That seems to me to be at least a legitimate inference to draw from the position that you have taken.\u201d\nPrior to granting Dr. Calimag\u2019s motion, the trial court also stated:\n\u201cTHE COURT: And I don\u2019t mean to mean this in the way that it sounds. But I do have a very strong \u2014 call it intuition or whatever the case may be, that the long-term intent of your client is to use this deposition not as a document in the case in chief but rather in the bigger issue that\u2019s going on between you[r] client, Dr. Calimag, and others. I do have that feeling.\u201d\nDefendant urges this court to agree that the aforementioned statement shows an abuse of discretion in sealing the deposition since the court referred to its \u201cintuition\u201d and \u201cfeeling\u201d in the attempt to justify its ruling. However, the trial court is in the best position to weigh fairly the competing interests and needs of the parties affected by discovery. Seattle Times Co., 467 U.S. at 36, 81 L. Ed. 2d at 29, 104 S. Ct. at 2209. As such, it is allowed the flexibility to use its own knowledge and experience in deciding whether justice requires the prevention of abuses to the discovery process through the imposition of the proposed protective order. See May Centers, Inc., 153 Ill. App. 3d at 1021, 506 N.E.2d at 694.\nThe court commented that it would not \u201cpermit the participants in the RICO action to take at-depth [sic] discovery depositions or use any discovery process in this state case where the intent is to use that information in some other case\u201d because it thought the act would be an abuse of both the discovery process and the order. Accordingly, in our view, it cannot be held that the trial court abused its discretion in granting Dr. Calimag\u2019s motion for a full protective order as the court felt the defendant was abusing the discovery process by preserving information, not for the present case, but for the ancillary federal proceeding that addresses the same issue defendant asserts is relevant to the issue at bar.\nDefendant additionally asserts that although Dr. Calimag\u2019s objections to the deposition are \u201ccloaked in terms of oppression,\u201d the real reason he sought to have his deposition sealed was fear of impeachment. However, this assertion does not change the conclusion in this case even though Supreme Court Rule 212(a) permits the use of deposition testimony for the purpose of impeaching the witness\u2019s credibility. See 134 Ill. 2d R. 212(a). As illustrated below, defendant\u2019s reliance on this rule is misplaced as Rule 212(a) is inapposite to the issues at bar.\nDefendant opines that she had good reason to depose Dr. Calimag in detail \u201csimply because he had been accused of fraud and racketeering,\u201d and that the present case represents an attempt to defraud defendant and State Farm. As such, she opines that the deposition of Dr. Calimag would help determine whether he performed unnecessary EMG procedures on Wilkerson, which is interestingly the exact charge against Dr. Calimag in the federal case. Defendant urges this court to find her theory controlling due to Dr. Calimag\u2019s testimony in a different proceeding regarding the proper time frame to test a patient. Defendant asserts that the testimony in that case conflicts with the facts in the present case. However, fraud on the part of plaintiffs or Dr. Calimag was never pled as an affirmative defense in defendant\u2019s answer to plaintiffs\u2019 complaint; therefore, defendant has waived this argument on review. See 735 ILCS 5/2 \u2014 613(d) (West 1994).\nUnder section 2 \u2014 613(d) of the Illinois Code of Civil Procedure, if the defendant seeks to assert an affirmative defense at trial or on review, she must specifically plead it so the plaintiff is not taken by surprise. 735 ILCS 5/2 \u2014 613(d) (West 1994). In failing to do so, the defendant has waived such an argument and it cannot be considered even if the evidence suggests its existence. First National Bank v. Village of Mundelein, 166 Ill. App. 3d 83, 90, 519 N.E.2d 476, 481 (1988); Carlson v. City Construction Co., 239 Ill. App. 3d 211, 243, 606 N.E.2d 400, 420 (1992). The trial court has the discretion to allow defendant to amend her pleadings to include such an affirmative defense prior to its final judgment; however, defendant has yet to do so. See 735 ILCS 5/2 \u2014 616(a) (West 1994); Carlisle v. Harp, 200 Ill. App. 3d 908, 915, 558 N.E.2d 318, 322 (1990). As such, defendant\u2019s argument regarding Dr. Calimag\u2019s possible fraudulent activity as shown through the deposition, which must be allowed under Rule 212(a) as impeachable evidence, is irrelevant to the issue at bar. Rather, in our view, the only issue is whether the trial court abused its discretion in granting Dr. Calimag\u2019s motion for a full protective order. As previously discussed, the court did not abuse its discretion.\nIll\nDefendant also contends that the more appropriate forum to address the concerns raised by Dr. Calimag was the federal court and that the trial court lacked the jurisdiction to bind State Farm, since the company is not a party to this litigation. However, the fact that State Farm is paying for the defense of this action is persuasive. Although State Farm is not officially a party to the action, if defendant intends to give deposition transcripts to the company for use in other actions, the trial court, in its discretion, has the authority to prevent such abuses to our liberal discovery process. See May Centers, Inc., 153 Ill. App. 3d at 1021, 506 N.E.2d at 694. Moreover, the order granting Dr. Calimag\u2019s motion was entered \u201cuntil further order of court,\u201d which allows defendant or State Farm to present evidence to the trial court at a later date which may warrant an order lifting the seal.\nWe find that the trial court did not abuse its discretion in sealing the deposition transcript of Dr. Calimag until further order of court. Accordingly, the order of the circuit court is affirmed.\nAffirmed.\nRAKOWSKI and McNULTY, JJ., concur.", "type": "majority", "author": "JUSTICE COUSINS" } ], "attorneys": [ "Zacar\u00edas R. Chacon and Marc A. Polansky, both of Blatt, Hammesfahr & Easton, of Chicago, for appellant.", "Ronald D. Abrams, of Law Offices of Harold R. Abrams, and Carl E. Poli and Michael L. Siegel, both of Stone, McGuire & Benjamin, both of Chicago, for appellee." ], "corrections": "", "head_matter": "DONALD AVERY et al., Plaintiffs, v. MICHELLE A. SABBIA, Defendant-Appellant (David P. Calimag, Movant-Appellee).\nFirst District (2nd Division)\nNo. 1\u201497\u20144166\nOpinion filed December 1, 1998.\nZacar\u00edas R. Chacon and Marc A. Polansky, both of Blatt, Hammesfahr & Easton, of Chicago, for appellant.\nRonald D. Abrams, of Law Offices of Harold R. Abrams, and Carl E. Poli and Michael L. Siegel, both of Stone, McGuire & Benjamin, both of Chicago, for appellee." }, "file_name": "0839-01", "first_page_order": 857, "last_page_order": 867 }