Legal Memorandum: A reviewing court is permitted to take jurisdiction of a discovery order

Issue: Under Illinois law, is a reviewing court permitted to take jurisdiction of a discovery order?

Before addressing the merits of the appeal, a court is permitted to clarify jurisdiction and the scope of review. See In re Marriage of Alyassir, 335 Ill. App. 3d 998, 999 (2003) (appellate court has independent duty to confirm its jurisdiction). Discovery rulings are not final orders, so they ordinarily cannot be appealed immediately. Reda v. Advocate Health Care, 199 Ill.2d 47, 54 (2002).  Section 10(b) of the Act, which provides, in relevant portion, that "[a]ny order to disclose or to not disclose shall be considered a final order for purposes of appeal and shall be subject to interlocutory appeal." [statref]740 ILCS 110/10(b) (West 2014)[/statref]. That provision was held to be unconstitutional. See Almgren v. Rush-Presbyterian-St. Luke’s Medical Center, 162 Ill.2d 205, 213 (1994) ("To the extent that section 10(b) of the Mental Health and Developmental Disabilities Confidentiality Act [citation] attempts to provide for appeals from less than final judgments, it is therefore an unconstitutional infringement by the legislature upon the rulemaking power of this court."). Accordingly, section 10(b) of the Act cannot serve as the basis of jurisdiction for discovery matters.

A party may secure immediate review of a particular discovery order by refusing to comply with that order, being held in contempt, and filing a notice of appeal within 30 days. See [regref]Ill. S.Ct. R. 304(b)(5) (eff. Feb. 26, 2010)[/regref]. When a party obtains appellate jurisdiction in this manner, the reviewing court addresses the propriety of the specific discovery order that the […]