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Limitations on Discovery

RICHARD L. MILLER II General Counsel DORA Holdings, Inc. CHRISTOPHER G. DEAN Novack and Macey LLP Chicago

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ILLINOIS CIVIL DISCOVERY PRACTICE

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I. [2.1] Introduction II. [2.2] Scope of Discovery III. Constitutional Limitations A. [2.3] Privilege Against Self-Incrimination 1. [2.4] Application of the Privilege Against Self-Incrimination 2. [2.5] Waiver of the Privilege Against Self-Incrimination 3. [2.6] Limitations on the Privilege Against Self-Incrimination B. [2.7] Bank Records IV. [2.8] Statutory Limitations A. [2.9] Marriage Privilege B. [2.10] Physician-Patient Privilege 1. [2.11] Statutory Exceptions to the Physician-Patient Privilege 2. [2.12] Judicially Created Exceptions to the Physician-Patient Privilege 3. [2.13] Ex Parte Communications with Medical Providers C. [2.14] Psychotherapist-Patient Privilege D. [2.15] Clergy’s Privilege E. [2.16] Reporter’s Privilege F. [2.17] Accountant’s Privilege G. [2.18] Social Worker’s Privilege H. [2.19] Medical Studies Privilege I. [2.20] Other Statutory Limitations 1. [2.21] The Informant’s Privilege 2. [2.22] Union Agent and Union Member Privilege 3. [2.23] Confidentiality of Statements Made to Counselors of Victims of Certain

Crimes V. [2.24] Court Rule Limitations A. [2.25] Attorney-Client Privilege 1. [2.26] Scope of the Attorney-Client Privilege 2. [2.27] Necessity of Confidence 3. [2.28] Exceptions to the Attorney-Client Privilege 4. [2.29] Waiver of the Attorney-Client Privilege 5. [2.30] Communications Between an Insured and an Insurance Carrier 6. [2.31] Corporate Clients

LIMITATIONS ON DISCOVERY

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B. [2.32] Work-Product Doctrine C. [2.33] Protective Orders 1. [2.34] Disclosure of Confidential Information 2. [2.35] Destruction of Evidence VI. [2.36] Common-Law Limitations VII. [2.37] Conclusion

§2.1 ILLINOIS CIVIL DISCOVERY PRACTICE


I. [2.1] INTRODUCTION The purpose of discovery in civil litigation is to promote the ascertainment of truth and to obtain information relevant to a party’s claims or defenses. Nevertheless, certain privileges and limitations narrow the scope of discovery. These limitations are grounded largely on the desire to protect certain socially desirable relationships and interests. The limitations can be created by constitution, statute, court rule, or common law. This chapter explores the most significant of these substantive limitations on discovery in civil litigation. II. [2.2] SCOPE OF DISCOVERY Supreme Court Rule 201(b)(1) establishes the basic scope of discovery in Illinois. It provides:

[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts. Id.

Pursuant to this rule, all matters are discoverable if they are relevant to the pending action and not privileged. Information need not be admissible at trial to be relevant; rather, the test for relevancy for purposes of discovery is whether the information sought appears reasonably calculated to lead to the discovery of admissible evidence. See Fawcett v. Reinertsen, 131 Ill.2d 380, 546 N.E.2d 558, 560, 137 Ill.Dec. 613 (1989) (discovery “presupposes a range of relevance and materiality which includes not only what is admissible at the trial, but also that which leads to what is admissible at the trial”), quoting Monier v. Chamberlain, 35 Ill.2d 351, 221 N.E.2d 410, 415 (1966). Thus, unless the scope of discovery is limited by some applicable privilege or exemption, the general rule is that full disclosure is required in response to a valid discovery request. In addition to promoting the ascertainment of truth, full disclosure offers the additional benefits of avoiding surprise and discouraging tactical gamesmanship. See Sullivan v. Edward Hospital, 209 Ill.2d 100, 806 N.E.2d 645, 282 Ill.Dec. 348 (2004). The Illinois courts have long recognized that “[d]isclosure is the object of all our discovery procedures.” Buehler v. Whalen, 70 Ill.2d 51, 374 N.E.2d 460, 467, 15 Ill.Dec. 852 (1977). Consistent with this philosophy, the rules of discovery are designed to promote full disclosure of relevant information, and courts generally will narrowly construe and apply the discovery limitations described in this chapter. III. CONSTITUTIONAL LIMITATIONS A. [2.3] Privilege Against Self-Incrimination The U.S. and Illinois Constitutions provide a testimonial privilege against self-incrimination. The Fifth Amendment to the U.S. Constitution provides:

LIMITATIONS ON DISCOVERY §2.4


No person . . . shall be compelled in any criminal case to be a witness against himself.

Article I, §10, of the Illinois Constitution provides:

No person shall be compelled in a criminal case to give evidence against himself nor be twice put in jeopardy for the same offense.

The relevant provisions of the U.S. and Illinois Constitutions “differ in semantics rather than in substance and have received the same general construction.” People ex rel. Hanrahan v. Power, 54 Ill.2d 154, 295 N.E.2d 472, 475 (1973). In practice, the privilege against self-incrimination actually is much broader than the language of these constitutional provisions suggests for two reasons. First, although the wording suggests otherwise, the privilege is available in civil as well as criminal matters. Lefkowitz v. Cunningham, 431 U.S. 801, 53 L.Ed.2d 1, 97 S.Ct. 2132 (1977); Cordeck Sales, Inc. v. Construction Systems, Inc., 382 Ill.App.3d 334, 887 N.E.2d 474, 320 Ill.Dec. 330 (1st Dist. 2008). The reason for this is because testimony in a civil proceeding may later subject the witness to criminal prosecution. Lefkowitz, supra, 97 S.Ct. at 2135; Cordeck Sales, supra, 887 N.E.2d at 490. Indeed, the Illinois appellate court has recognized that

[t]he privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. City of Chicago v. Lord, 3 Ill.App.2d 410, 122 N.E.2d 439, 443 (1st Dist. 1954), aff’d, 7 Ill.2d 379 (1955), quoting McCarthy v. Arndstein, 266 U.S. 34, 69 L.Ed. 158, 45 S.Ct. 16, 17 (1924).

Hence, the privilege against self-incrimination is available to witnesses in both criminal and civil proceedings. Second, the privilege against self-incrimination applies not only to testimonial matters, but also to ordinary discovery matters. United States v. Kordel, 397 U.S. 1, 25 L.Ed.2d 1, 90 S.Ct. 763 (1970). In Kordel, the Supreme Court held that a corporate executive was entitled to assert the Fifth Amendment privilege in his interrogatory responses in a civil condemnation proceeding even though the corporate defendant enjoyed no such privilege and even though the matter was not a criminal action. Id. 1. [2.4] Application of the Privilege Against Self-Incrimination “A party who reasonably apprehends a risk of self-incrimination may claim the privilege.” 10-Dix Building Corp. v. McDannel, 134 Ill.App.3d 664, 480 N.E.2d 1212, 1218, 89 Ill.Dec. 469 (1st Dist. 1985). Hence, the privilege extends “only to witnesses who have a ‘reasonable cause to apprehend danger from a direct answer.’ ” Cordeck Sales, Inc. v. Construction Systems, Inc., 382 Ill.App.3d 334, 887 N.E.2d 474, 490, 320 Ill.Dec. 330 (1st Dist. 2008), quoting Hoffman v. United States, 341 U.S. 479, 95 L.Ed. 1118, 71 S.Ct. 814, 818 (1951).



The court is responsible for determining whether “reasonable apprehension” exists. See, e.g., 10-Dix Building Corp., supra (finding sufficient cause to justify application of privilege after plaintiff’s attorney made statements in settlement conference suggesting possibility of criminal suit against defendant). To do so, it must inquire “whether the fear of incrimination is valid, and if reasonable, how far the valid privilege extends.” People v. Mileris, 103 Ill.App.3d 589, 431 N.E.2d 1064, 1068, 59 Ill.Dec. 307 (1st Dist. 1981). This inquiry can involve a question-by-question analysis to determine whether answers to deposition questions tend to incriminate the witness. See Galante v. Steel City National Bank of Chicago, 66 Ill.App.3d 476, 384 N.E.2d 57, 62, 23 Ill.Dec. 421 (1st Dist. 1978). Consequently, a mere blanket assertion of the privilege will not suffice; there must be some reasonable basis to warrant its application. Criminal proceedings need not exist or even be impending to justify application of the privilege. In fact, a witness can have a reasonable apprehension of self-incrimination “even if the risk of prosecution is remote.” See 10-Dix Building Corp., supra, 480 N.E.2d at 1218. See also People ex rel. Hartigan v. Kafka & Sons Building & Supply Co., 252 Ill.App.3d 115, 625 N.E.2d 16, 192 Ill.Dec. 56 (1st Dist. 1993); Gabriel v. Columbia National Bank of Chicago, 228 Ill.App.3d 240, 592 N.E.2d 556, 557, 170 Ill.Dec. 120 (1st Dist. 1992). The courts therefore have made clear that prosecution need not be likely for the fear of prosecution to be reasonable. 2. [2.5] Waiver of the Privilege Against Self-Incrimination Like many other privileges, the privilege against self-incrimination can be waived. Cordeck Sales, Inc. v. Construction Systems, Inc., 382 Ill.App.3d 334, 887 N.E.2d 474, 320 Ill.Dec. 330 (1st Dist. 2008). A witness ordinarily waives the privilege by failing to claim it, and once waived, the privilege can no longer be asserted as to the potentially criminal act in question. People v. Cantu, 79 Ill.App.3d 279, 398 N.E.2d 308, 34 Ill.Dec. 633 (1st Dist. 1979). However, waiver of the privilege “is not lightly to be inferred,” and “the doctrine of waiver is limited to the particular proceeding in which the voluntary testimony is given.” Cordeck Sales, supra, 887 N.E.2d at 492. Indeed, the constitutional protection against self-incrimination should be “liberally construed,” and “every reasonable presumption against waiver of such rights must be indulged.” [Emphasis in original.] 10-Dix Building Corp. v. McDannel, 134 Ill.App.3d 664, 480 N.E.2d 1212, 1217, 89 Ill.Dec. 469 (1st Dist. 1985). The appellate court has noted that

[i]f . . . the allegations constituting claimant’s affirmative defense do not amount to an admission of guilt or furnish clear proof of crime, claimant’s constitutional privilege to refuse to answer interrogatories must be sustained if responsive answers might tend to incriminate him. [Emphasis added by 10-Dix court.] 480 N.E.2d at 1217, quoting United States v. Article of Drug Consisting of 47 Bottles, More or Less, Each Containing 30 Capsules of Article Labelled in Part: “Jenasol R.J. Formula ‘60,’ ” 26 F.R.D. 4, 8 (D.N.J. 1960).

As a result, courts in Illinois will not find a waiver unless a response in an answer amounts to an admission of guilt or furnishes proof of a crime. But if waiver of the privilege against self-incrimination in fact occurs, the critical question is the scope of the waiver. Regardless of whether the waiver is by an ordinary witness or by the



accused, a single standard applies: waiver is coextensive with the scope of legitimate cross-examination. People v. Burris, 49 Ill.2d 98, 273 N.E.2d 605 (1971); People v. Madden, 2012 IL App (1st) 093496-U, ¶¶125 – 126, appeal denied, 982 N.E.2d 772 (2013). The logic of this rule is clear: the witness who testifies on his or her own behalf also offers himself or herself up as a witness for the opposing party during cross-examination. Burris, supra, 273 N.E.2d at 609 – 610. Accordingly, an ordinary witness who testifies to only part of an act or conversation cannot thereafter rely on the privilege to prevent discovery of the entire act or conversation. People v. Nachowicz, 340 Ill. 480, 172 N.E. 812 (1930); People v. Peebles, 120 Ill.App.3d 376, 457 N.E.2d 1318, 1322, 75 Ill.Dec. 759 (1st Dist. 1983). 3. [2.6] Limitations on the Privilege Against Self-Incrimination The courts have identified several limiting principles to the constitutional privilege against self-incrimination. The first is the “required-records doctrine,” pursuant to which the privilege does not apply. “Required records” are business records that are customarily kept in accordance with government regulation and that have aspects such that the records can be characterized as public. See Shapiro v. United States, 335 U.S. 1, 92 L.Ed. 1787, 68 S.Ct. 1375 (1948). Illinois courts have recognized that such records must be produced if

(1) the purpose of the record-keeping requirement [is] essentially regulatory; (2) the records [are] of a kind customarily kept[;] and (3) the records themselves . . . have assumed public aspects. People v. Mileris, 103 Ill.App.3d 589, 431 N.E.2d 1064, 1068, 59 Ill.Dec. 307 (1st Dist. 1981).

Mileris involved a grand jury investigation into workers’ compensation claims. Mileris, a doctor, was held in contempt for refusing to turn over to the grand jury certain records of services he provided. He appealed the contempt order, arguing that the trial court had violated his Fifth Amendment rights by ordering him to turn over the records. The state countered that the records were required records under two workers’ compensation statutes that ostensibly required that the records be created and kept and were thus discoverable under the required-records doctrine. The appellate court determined that only one of the two statutes actually required the records be kept and accordingly held that any record created pursuant to that statute was a discoverable required record notwithstanding the doctor’s claim of privilege. It further held, however, that any record created pursuant to the other statute did not fit the definition of a “required record.” Accordingly, it remanded the issue to the trial court to determine if the information in those records was in fact “incriminating” such that the doctor had a reasonable apprehension of prosecution that justified application of the privilege against self-incrimination. Id. The second limitation to the privilege against self-incrimination applies when, as opposed to inadvertently waiving the privilege, a defendant attempts to strategically assert it to his or her advantage. In re Marriage of Hassiepen, 269 Ill.App.3d 559, 646 N.E.2d 1348, 207 Ill.Dec. 261 (4th Dist. 1995), illustrates this concept. There, the defendant attempted to submit tax returns as evidence yet refused to answer questions regarding those returns during cross-examination. Id. The court rejected the defendant’s attempt to selectively assert the privilege:

[H]e can assert the fifth amendment regarding these issues during cross-examination, but then he cannot rely upon his tax returns as evidence of his 1992



income; or . . . he can submit his 1992 tax returns as evidence of his 1992 income, but then he cannot assert the fifth amendment during cross-examination. [Emphasis in original.] 646 N.E.2d at 1355.

In other words, a defendant cannot invoke the privilege against self-incrimination on an issue but also assert as evidence the same issue on which the privilege had been invoked. The third limitation involves the distinction between civil disciplinary hearings and criminal actions. Illinois courts have held that the two types of proceedings are sufficiently distinguishable such that the privilege against self-incrimination does not preclude the use of compelled testimony in a civil disciplinary hearing, such as a police board’s decision to discharge an officer, but does prevent the use of such testimony in criminal actions. Douglas v. Daniels, 64 Ill.App.3d 1022, 382 N.E.2d 90, 93, 21 Ill.Dec. 796 (1st Dist. 1978). B. [2.7] Bank Records Although there is no federally recognized right to privacy in bank records under the U.S. Constitution (United States v. Miller, 425 U.S. 435, 48 L.Ed.2d 71, 96 S.Ct. 1619 (1976) (finding no legitimate expectancy interest of privacy in certain bank records under Fourth Amendment)), the Illinois Constitution may provide such a privilege (see People v. Caballes, 221 Ill.2d 282, 851 N.E.2d 26, 303 Ill.Dec. 128 (2006)). While the Illinois Supreme Court has not definitively ruled on the issue, it has cited with approval an appellate court decision finding that such a right exists under the Illinois Constitution. In re May 1991 Will County Grand Jury, 152 Ill.2d 381, 604 N.E.2d 929, 937, 178 Ill.Dec. 406 (1992) (holding Illinois Constitution assures citizens of right of privacy in their bank records), citing People v. Jackson, 116 Ill.App.3d 430, 452 N.E.2d 85, 88 – 89, 72 Ill.Dec. 153 (1st Dist. 1983). See also People v. Nesbitt, 405 Ill.App.3d 823, 938 N.E.2d 600, 605, 345 Ill.Dec. 161 (2d Dist. 2010) (“it is clear that the privacy clause of the Illinois Constitution protects an individual’s bank records”). Whatever “bank records privilege” exists, however, is qualified. In Dufour v. Mobil Oil Corp., 301 Ill.App.3d 156, 703 N.E.2d 448, 452, 234 Ill.Dec. 587 (1st Dist. 1998), the court found that certain portions of the plaintiff’s bank statements were relevant to the case. Before ordering production of the material, however, the court instructed the circuit court to review the contents of the subpoena to ensure that it was not overly broad. Id. The court further cautioned that before any motion to compel the production of bank records is granted, the opposing party should be given an opportunity to be heard, and the trial court should consider the basis for the request and whether another source may provide similar information in a less intrusive manner. Further, the appellate court instructed the trial court to determine exactly what, if any, information from the accounts is relevant and to take whatever steps are necessary to ensure that the information disclosed is used only for a proper purpose limited to the instant proceeding. Id.



IV. [2.8] STATUTORY LIMITATIONS Statutory privileges, like common-law privileges, exist to promote a higher public interest in protecting certain types of confidential communications from disclosure. The existence, applicability, breadth, waiver, and conformity with public policy of a privilege are all questions of law for courts to decide. Giangiulio v. Ingalls Memorial Hospital, 365 Ill.App.3d 823, 850 N.E.2d 249, 302 Ill.Dec. 812 (1st Dist. 2006). The party asserting a privilege “carries the burden of presenting facts that give rise to the privilege.” Janousek v. Slotky, 2012 IL App (1st) 113432, ¶22, 980 N.E.2d 641, 366 Ill.Dec. 548. What is more, the mere assertion of privilege is not sufficient; rather, “the proponent of the privilege must set forth with particularity circumstances giving rise to the privilege in each particular case.” People ex rel. Birkett v. City of Chicago, 184 Ill.2d 521, 705 N.E.2d 48, 53, 235 Ill.Dec. 435 (1998). As one appellate court put it:

[The parties] should have supported the claim of privilege either by submitting the purportedly privileged materials for in camera inspection or by submitting affidavits setting forth facts sufficient to establish the applicability of the privilege to particular documents being withheld. Ekstrom v. Temple, 197 Ill.App.3d 120, 553 N.E.2d 424, 428, 142 Ill.Dec. 910 (2d Dist. 1990).

This means that a party asserting a privilege should be prepared to support its assertion with appropriate documentation if the applicability of the privilege is called into question. A. [2.9] Marriage Privilege Section 8-801 of the Code of Civil Procedure, 735 ILCS 5/1-101, et seq., governs the spousal testamentary privilege. It provides:

In all actions, husband and wife may testify for or against each other, provided that neither may testify as to any communication or admission made by either of them to the other or as to any conversation between them during marriage, except in actions between such husband and wife, and in actions where the custody, support, health or welfare of their children or children in either spouse’s care, custody or control is directly in issue, and as to matters in which either has acted as agent for the other. 735 ILCS 5/8-801.

Thus, the privilege against disclosure exists only for certain confidential communications between spouses. It does not, however, bar testimony for or against a spouse in any action between spouses or when the custody or welfare of either spouse’s children is in question. This statutory rule is a departure from the broad testamentary privileges once afforded to spouses at common law. The common-law rule provided that during the marriage or after its termination by death or dissolution a husband and wife were incompetent to testify for or against one another or relate conversations made during the marriage relation. Heineman v. Hermann, 385 Ill. 191, 52 N.E.2d 263 (1944). The common-law rule applied even in suits to which neither



spouse was a party and to any other matter, knowledge of which was obtained as a result of the spousal relationship. Ohio Oil Co. v. Industrial Commission, 293 Ill. 461, 127 N.E. 743 (1920); Schreffler v. Chase, 245 Ill. 395, 92 N.E. 272 (1910). In 1982, §8-801 of the Code of Civil Procedure replaced the common-law rule, narrowing the scope of the privilege. Notably, documents prepared before marriage, such as prenuptial agreements, are not covered by the marriage privilege even if they are executed “in contemplation of marriage.” Puterbaugh v. Puterbaugh, 327 Ill.App.3d 792, 764 N.E.2d 582, 584, 261 Ill.Dec. 967 (3d Dist. 2002). The marriage privilege applies only to communication that occurs during the marriage, not to documents agreed to before marriage. Id. B. [2.10] Physician-Patient Privilege Section 8-802 of the Code of Civil Procedure governs the doctor-patient privilege. It provides, in relevant part:

No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient. 735 ILCS 5/8-802.

This statutory privilege strictly limits discovery of communication between a doctor and a patient, even though no such privilege existed at common law, with 12 enumerated exceptions. Legislative recognition of the privilege reflects an important public policy: “to encourage full disclosure by a patient to ensure that he or she receives the best possible diagnosis and treatment.” People v. Kucharski, 346 Ill.App.3d 655, 806 N.E.2d 683, 688, 282 Ill.Dec. 386 (2d Dist. 2004). “In creating the physician-patient privilege, the legislature recognize[d] that patients have a right to be free from the embarrassment and invasion of privacy that often accompany the disclosure of medical information.” Pritchard v. SwedishAmerican Hospital, 191 Ill.App.3d 388, 547 N.E.2d 1279, 1288, 138 Ill.Dec. 658 (2d Dist. 1989). Like the attorney-client privilege, the physician-patient privilege can be waived only by the patient, not by the doctor. Requena v. Franciscan Sisters Health Care Corp., 212 Ill.App.3d 328, 570 N.E.2d 1214, 156 Ill.Dec. 492 (3d Dist. 1991). The doctor-patient privilege applies broadly to physicians, support staff, paramedics, and even the hospital where the patient sought treatment. See People v. Wilber, 279 Ill.App.3d 462, 664 N.E.2d 711, 715, 216 Ill.Dec. 74 (4th Dist. 1996) (privilege can be established between paramedics and patients); Parkson v. Central DuPage Hospital, 105 Ill.App.3d 850, 435 N.E.2d 140, 61 Ill.Dec. 651 (1st Dist. 1982) (privilege binds hospitals and support staff). It also applies to prevent disclosure of confidential medical information through means other than the established discovery process. In Village of Arlington Heights v. Bartelt, 211 Ill.App.3d 747, 570 N.E.2d 668, 156 Ill.Dec. 192 (1st Dist. 1991), for example, the court held that oral statements made by a treating nurse to a police officer regarding the patient’s blood alcohol content fell within the statutory privilege of physician-patient privileged communications. In so holding, the court noted that “the nature of the physician-patient relationship is such that the patient has a right to expect that her medical records will only be disclosed pursuant to judicially authorized methods of discovery.” 570 N.E.2d at 671.



1. [2.11] Statutory Exceptions to the Physician-Patient Privilege Notwithstanding the strict limitations §8-802 of the Code of Civil Procedure imposes on disclosure of confidential doctor-patient communications, a number of statutory exceptions exist. Pursuant to the statute, confidential medical information about a patient can be discovered in 12 specific circumstances: a. in homicide trials when the disclosure relates directly to the fact or immediate

circumstances of the homicide (735 ILCS 5/8-802(1); see People v. Sutton, 316 Ill.App.3d 874, 739 N.E.2d 543, 250 Ill.Dec. 780 (1st Dist. 2000));

b. in civil or criminal actions against the healthcare practitioner for malpractice, in

which case the patient shall be deemed to have waived all privileges relating to physical or mental condition (735 ILCS 5/8-802(2); see Parkson v. Central DuPage Hospital, 105 Ill.App.3d 850, 435 N.E.2d 140, 61 Ill.Dec. 651 (1st Dist. 1982));

c. with the expressed consent of the patient, or in case of his or her death or disability,

of his or her personal representative or other person authorized to sue for personal injury or of the beneficiary of an insurance policy on his or her life, health, or physical condition (735 ILCS 5/8-802(3); see People v. Bickham, 90 Ill.App.3d 897, 414 N.E.2d 37, 46 Ill.Dec. 315 (1st Dist. 1980));

d. in all actions brought by or against the patient, his or her personal representative, a

beneficiary under a policy of insurance, or the executor or administrator of his or her estate in which the patient’s physical or mental condition is an issue, in which case the patient again shall be deemed to have waived all privileges relating to physical or mental condition (735 ILCS 5/8-802(4); People v. Wilber, 279 Ill.App.3d 462, 664 N.E.2d 711, 715, 216 Ill.Dec. 74 (4th Dist. 1996));

e. when there is a question as to whether a particular document is the will of a patient

(735 ILCS 5/8-802(5)); f. in any criminal action in which the charge is “either first degree murder by abortion,

attempted abortion or abortion” (735 ILCS 5/8-802(6); see People v. Florendo, 95 Ill.App.3d 601, 420 N.E.2d 506, 51 Ill.Dec. 92 (1st Dist. 1981));

g. in civil or criminal actions arising from the filing of a report in compliance with the

Abused and Neglected Child Reporting Act (735 ILCS 5/8-802(7)); h. to any department, agency, institution, or facility that has custody of the patient

pursuant to state statute or any court order of commitment (735 ILCS 5/8-802(8); see People v. Maltbia, 273 Ill.App.3d 622, 653 N.E.2d 402, 210 Ill.Dec. 497 (3d Dist. 1995));

i. in prosecutions in which written results of blood alcohol tests are admissible

pursuant to §11-501.4 of the Illinois Vehicle Code (735 ILCS 5/8-802(9); see People v. Ernst, 311 Ill.App.3d 672, 725 N.E.2d 59, 244 Ill.Dec. 264 (2d Dist. 2000));



j. in prosecutions in which written results of blood alcohol tests are admissible under §5-11a of the Boat Registration and Safety Act (735 ILCS 5/8-802(10));

k. in criminal actions arising from the filing of a report of a suspected terrorist offense

in compliance with §29D-10(p)(7) of the Criminal Code of 2012 (735 ILCS 5/8-802(11)); and

l. upon the issuance of a subpoena pursuant to §38 of the Medical Practice Act of 1987,

§25.1 of the Illinois Dental Practice Act, or §22 of the Nursing Home Administrators Licensing and Disciplinary Act (735 ILCS 5/8-802(12)).

2. [2.12] Judicially Created Exceptions to the Physician-Patient Privilege Certain judicially created limitations exist as well. First, the privilege applies only to communication that was “necessary to enable a physician to serve a patient.” Giangiulio v. Ingalls Memorial Hospital, 365 Ill.App.3d 823, 850 N.E.2d 249, 258, 302 Ill.Dec. 812 (1st Dist. 2006). As a corollary, disclosure of the patient’s name and address generally does not violate the privilege. Id. See also House v. SwedishAmerican Hospital, 206 Ill.App.3d 437, 564 N.E.2d 922, 151 Ill.Dec. 467 (2d Dist. 1990). Courts have made exceptions to this principle, however, when disclosure of a nonparty’s identity would reveal the details of the patient’s medical condition. Defilippis v. Gardner, 368 Ill.App.3d 1092, 859 N.E.2d 197, 307 Ill.Dec. 197 (2d Dist. 2006). Second, the physician-patient privilege does not apply in “adversarial” situations, such as when the physician examines the patient under a court order or for the purpose of rendering a “medical-legal” opinion through testimony as an adverse expert witness. Salingue v. Overturf, 269 Ill.App.3d 1102, 647 N.E.2d 1068, 1070, 207 Ill.Dec. 575 (5th Dist. 1995). The logic underlying this limitation is clear: An exam pursuant to a court order “is neither based on any benefit to be derived by the plaintiff nor contingent upon plaintiff’s consent. . . . The plaintiff knows that the doctor has been selected by his or her opponent and that all findings from the examination, and all statements made by the plaintiff, will be revealed to the opponent.” [Emphasis in original.] Id. See also Moore v. Centreville Township Hospital, 246 Ill.App.3d 579, 616 N.E.2d 1321, 186 Ill.Dec. 689 (5th Dist. 1993), rev’d on other grounds, 158 Ill.2d 543 (1994). 3. [2.13] Ex Parte Communications with Medical Providers Public policy “strongly favors the confidential and fiduciary relationship existing between a patient and his physician.” Petrillo v. Syntex Laboratories, Inc., 148 Ill.App.3d 581, 499 N.E.2d 952, 957, 102 Ill.Dec. 172 (1st Dist. 1986), appeal denied, 113 Ill.2d 584, cert. denied, 107 S.Ct. 3232 (1987). The law accordingly prohibits ex parte communication between defense counsel and a plaintiff’s medical provider. Id. For purposes of this prohibition, “ex parte” is broadly defined as “any discussion that defense counsel has with a plaintiff’s treating physician which is not pursuant to the authorized methods of discovery.” 499 N.E.2d at 954 n.1. What is more, the prohibition applies not only to physicians, but also to the nurses and staff who treat a plaintiff. Lewis v. Illinois Central R.R., 234 Ill.App.3d 669, 600 N.E.2d 504, 175 Ill.Dec. 573 (5th Dist. 1992). Consequently, all communication between defense counsel and a plaintiff’s medical



provider should be conducted only through means of formal, judicially approved discovery. Moss v. Amira, 356 Ill.App.3d 701, 826 N.E.2d 1001, 292 Ill.Dec. 565 (1st Dist. 2005). Illinois courts strictly enforce this rule. The plaintiff need not demonstrate any improper conduct or actual prejudice for sanctionable ex parte contact to be found. Pourchot v. Commonwealth Edison Co., 224 Ill.App.3d 634, 587 N.E.2d 589, 167 Ill.Dec. 320 (3d Dist. 1992). Indeed, an ex parte communication will violate the prohibition regardless of the information actually revealed in the communication (Mondelli v. Checker Taxi Co., 197 Ill.App.3d 258, 554 N.E.2d 266, 143 Ill.Dec. 331 (1st Dist. 1990)) and regardless of whether the contact was harmless or in good faith (Pourchot, supra, 587 N.E.2d at 591 (“Whether the contact was indeed harmless or conducted in good faith is irrelevant under our analysis.” [Emphasis in original.])). Illinois courts have held a wide range of contact to be prohibited ex parte communication. See, e.g., Moss, supra (letters to treating physician following physician’s deposition regarding defense’s view of medical opinions to be disclosed at trial); Lewis, supra (written requests for medical records accompanied by subpoena); Baylaender v. Method, 230 Ill.App.3d 610, 594 N.E.2d 1317, 171 Ill.Dec. 797 (1st Dist. 1992) (discussions between plaintiff’s treating physician and attorney who later became attorney for defendant physician); Requena v. Franciscan Sisters Health Care Corp., 212 Ill.App.3d 328, 570 N.E.2d 1214, 156 Ill.Dec. 492 (3d Dist. 1991) (discussion in defense counsel’s office before treating physician’s deposition). C. [2.14] Psychotherapist-Patient Privilege Communications between a psychotherapist and a patient are protected not only by the “physician-patient” privilege under §8-802 of the Code of Civil Procedure, 735 ILCS 5/8-802, but also by the Mental Health and Developmental Disabilities Confidentiality Act (MHDDCA), 740 ILCS 110/1, et seq. See In re Marriage of Lombaer, 200 Ill.App.3d 712, 558 N.E.2d 388, 146 Ill.Dec. 425 (1st Dist. 1990). Like the privilege that protects communication between any other type of doctor and patient, this privilege protects the confidentiality of the records and communications of those receiving mental health services and induces patients to seek treatment. House v. SwedishAmerican Hospital, 206 Ill.App.3d 437, 564 N.E.2d 922, 926, 151 Ill.Dec. 467 (2d Dist. 1990). According to the Illinois Supreme Court, “the [MHDDCA] constitutes a ‘strong statement’ by the General Assembly about the importance of keeping mental health records confidential.” Norskog v. Pfiel, 197 Ill.2d 60, 755 N.E.2d 1, 10, 257 Ill.Dec. 899 (2001), quoting Mandziara v. Canulli, 299 Ill.App.3d 593, 701 N.E.2d 127, 133, 233 Ill.Dec. 484 (1st Dist. 1998). Some courts have interpreted the privilege based on the MHDDCA to be “broader” than other types of physician-patient privilege, in that it limits discovery of “communications and records generated in connection with providing mental health services to a recipient . . . unless excepted by law.” People v. Kaiser, 239 Ill.App.3d 295, 606 N.E.2d 695, 699, 179 Ill.Dec. 863 (2d Dist. 1992). In fact, the Illinois Supreme Court has recognized that because the definition of “communications” under the MHDDCA includes “any communication made by a recipient or other person to a therapist . . . in connection with providing mental health or developmental



disability services to a recipient,” the privilege prevents discovery of communication between the therapist and third parties that pertain to treatment of the patient. [Emphasis in original.] Norskog, supra, 755 N.E.2d at 10 (finding that patient’s lack of consent prevented his parents from disclosing conversations with his therapist). Still, the MHDDCA privilege is not unyielding. In D.C. v. S.A., 178 Ill.2d 551, 687 N.E.2d 1032, 1040, 227 Ill.Dec. 550 (1997), for example, the Supreme Court held that “fundamental fairness” militated in favor of the disclosure of communications between a patient and a therapist that were potentially decisive as to the defendant’s liability, admissible, not unduly prejudicial, and unavailable elsewhere. See also Renzi v. Morrison, 249 Ill.App.3d 5, 618 N.E.2d 794, 796, 188 Ill.Dec. 224 (1st Dist. 1993) (finding testimony about otherwise privileged communication permissible if, after in camera review, court determines it to be “relevant, admissible, and more important to the interest of justice than a patient’s right to confidentiality”), appeal denied, 152 Ill.2d 579 (1993). What is more, numerous exceptions to the MHDDCA exist under which discovery of protected communications or mental health records can be had without first obtaining the patient’s consent. See 740 ILCS 110/9 – 110/13. When the patient’s claim puts his or her mental health at issue, for example, any privilege afforded to the patient under the MHDDCA is waived. 740 ILCS 110/10(a)(1). What constitutes an issue of mental health, however, is not always clear. In Reda v. Advocate Health Care, 199 Ill.2d 47, 765 N.E.2d 1002, 262 Ill.Dec. 394 (2002), a medical negligence action in which the plaintiff suffered injuries including a stroke and the amputation of a foot, the appellate court had found that the plaintiff’s alleged changes in personality, loss of memory, deficits in comprehension, and difficulty performing routine tasks were psychological traumas that put his mental health at issue, thereby waiving the protections of the MHDDCA. The Illinois Supreme Court disagreed. In reversing the lower court, it noted that a “neurological injury is not synonymous with psychological damage” and that the injuries about which the plaintiff complained were not mental health issues but rather symptoms of a neurological problem, i.e., a stroke. 765 N.E.2d at 1009. Thus, the plaintiff had not put his mental health at issue, and the privilege under the MHDDCA remained intact. Id. D. [2.15] Clergy’s Privilege Section 8-803 of the Code of Civil Procedure governs the clergy’s privilege. It states:

A clergyman or practitioner of any religious denomination accredited by the religious body to which he or she belongs, shall not be compelled to disclose in any court, or to any administrative board or agency, or to any public officer, a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes, nor be compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor. 735 ILCS 5/8-803.

The party asserting the privilege must establish that the communication at issue was an admission or confession “(1) made for the purpose of receiving spiritual counsel or consolation (2) to a clergy member whose religion requires him to receive admissions or confessions for the



purpose of providing spiritual counsel or consolation.” People v. Campobello, 348 Ill.App.3d 619, 810 N.E.2d 307, 321, 284 Ill.Dec. 654 (2d Dist. 2004). Once attached, the privilege prevents disclosure of the substance and topic of the confidential communication; it does not, however, preclude the clergyperson from relating observations about a confessor, such as his or her speech, hearing, eyesight, or writing ability. Snyder v. Poplett, 98 Ill.App.3d 359, 424 N.E.2d 396, 399, 53 Ill.Dec. 761 (4th Dist. 1981). Notably, the privilege belongs to both the person making it and to the clergyperson. People v. Burnidge, 279 Ill.App.3d 127, 664 N.E.2d 656, 216 Ill.Dec. 19 (2d Dist. 1996). Consequently, if the clergyperson does not object to testifying, the burden is on the person asserting the privilege to show that disclosure is enjoined by the rules or practices of the relevant religion. People v. Diercks, 88 Ill.App.3d 1073, 411 N.E.2d 97, 44 Ill.Dec. 191 (5th Dist. 1980). Statements need not be made during a formal confession pursuant to a specific church doctrine to be eligible for the privilege. Rather, the “broad language” of the statute indicates that all confidential disclosures made in the course of spiritual counseling are within the privilege. Michael H. Graham, CLEARY & GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE §503.2 (9th ed. 2009). The privilege is limited, however, to communications made to one serving in the capacity of a spiritual advisor. For example, in People v. McNeal, 175 Ill.2d 335, 677 N.E.2d 841, 222 Ill.Dec. 307 (1997), the Illinois Supreme Court declined to extend the privilege to communications by a murder suspect to his brother who was a minister in a church that had a history of asserting the clergy’s privilege because the statements were not made to the brother in his capacity as a spiritual advisor. E. [2.16] Reporter’s Privilege Section 8-901 of the Code of Civil Procedure governs the reporter’s privilege. It provides:

No court may compel any person to disclose the source of any information obtained by a reporter except as provided in . . . this Act. 735 ILCS 5/8-901.

A “reporter” is defined as “any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis.” 735 ILCS 5/8-902(a). “News medium” is defined as “any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation.” 735 ILCS 5/8-902(b). A “source” is defined as “the person or means from or through which the news or information was obtained.” 735 ILCS 5/8-902(c). The statute creates a qualified privilege for reporters that prevents compelled disclosure of their sources, whether confidential or nonconfidential. People v. Slover, 323 Ill.App.3d 620, 753 N.E.2d 554, 257 Ill.Dec. 359 (4th Dist. 2001). The privilege is designed to “preserve the autonomy of the press by allowing reporters to assure their sources of confidentiality,” which in turn permits the public to receive “complete, unfettered information.” In re Subpoena Duces Tecum to Arya, 226 Ill.App.3d 848, 589 N.E.2d 832, 834, 168 Ill.Dec. 432 (4th Dist. 1992). The privilege recognizes that key to accomplishing this goal is protecting “anonymous sources from retribution for revealing publicly valuable — though damaging or even damning — information.” Id., citing United States v. Criden, 633 F.2d 346, 356 (3d Cir. 1980).



The privilege does not constitute a wholesale ban on calling a reporter to testify. Instead, the statute, by its terms, limits discovery only of the source of information, not the information itself. Thus, a reporter generally can be called to testify about the substance, but not the source, of information. As noted above, the reporter’s privilege is qualified in Illinois. According to the statute, a party can apply to the court for an order divesting a reporter or editor of the privilege. 735 ILCS 5/8-903. The statute further provides that the court shall grant a divestiture order if the petitioner demonstrates (1) that no other law prevents divestiture and (2) that all other available sources have been exhausted and that either the information obtained by the reporter is essential to protect the public interest involved or, in libel or slander cases, the plaintiff’s need for disclosure of the information sought outweighs the public interest in protecting the confidentiality of the source. 735 ILCS 5/8-907. The Illinois Supreme Court has held that establishing exhaustion requires “more than a showing of inconvenience to the investigator before a reporter can be compelled to disclose his sources.” In re Special Grand Jury Investigation of Alleged Violation of Juvenile Court Act, 104 Ill.2d 419, 472 N.E.2d 450, 454, 84 Ill.Dec. 490 (1984). A party seeking the source of information who, for example, has failed to obtain the sworn testimony of readily available witnesses with knowledge of relevant facts has not established the exhaustion necessary to justify divestiture of the reporter’s privilege. Id. F. [2.17] Accountant’s Privilege Section 27 of the Illinois Public Accounting Act governs the accountant’s privilege. It provides:

A licensed or registered CPA shall not be required by any court to divulge information or evidence which has been obtained by him in his confidential capacity as a licensed or registered CPA. 225 ILCS 450/27.

The accountant’s privilege shares similar features with the attorney-client privilege. Both privileges acknowledge that the particular relationship is so valuable to society that it should be fostered by preserving confidentiality even though evidence that might aid in the quest for truth will be lost. Baylor v. Mading-Dugan Drug Co., 57 F.R.D. 509 (N.D.Ill. 1972). And both privileges apply only to information that was intended to be confidential, not to information that was given to an attorney or an accountant to be disclosed to some third party (such as a taxing authority). In re Estate of Berger, 166 Ill.App.3d 1045, 520 N.E.2d 690, 117 Ill.Dec. 339 (1st Dist. 1987). Unlike the attorney-client privilege, however, the accountant’s privilege belongs only to the accountant and may not be raised or claimed by the client. Western Employers Insurance Co. v. Merit Insurance Co., 492 F.Supp. 53, 55 (N.D.Ill. 1979). Furthermore, the privilege will not attach unless the confidential information was obtained during work performed in Illinois by accountants who are registered in Illinois. Armour International Co. v. Worldwide Cosmetics, Inc., 689 F.2d 134 (7th Cir. 1982). Notably, the accountant’s privilege applies only in Illinois state courts or in federal courts applying Illinois state law when subject-matter jurisdiction is based on diversity. In other words,



the privilege does not apply in federal court when jurisdiction is based on a federal question, even if the information sought is relevant to claims founded on Illinois law. Federal Deposit Insurance Corp. v. Mercantile National Bank of Chicago, 84 F.R.D. 345 (N.D.Ill. 1979). This is because the accountant’s privilege is entirely a creation of Illinois state statutory law; it was not recognized at common law, and it has no federal statutory or common-law equivalent. G. [2.18] Social Worker’s Privilege The Clinical Social Work and Social Work Practice Act, 225 ILCS 20/1, et seq., governs the social worker’s privilege. It generally provides that “[n]o licensed clinical social worker or licensed social worker shall disclose any information acquired from persons consulting the social worker in a professional capacity.” 225 ILCS 20/16(1). However, the statute specifically allows a social worker to voluntarily testify in six unique circumstances:

(a) In the course of formally reporting, conferring or consulting with administrative superiors, colleagues or consultants who share professional responsibility, including a professional responsibility to maintain confidentiality, in which instance all recipients of such information are similarly bound to regard the communication as privileged; (b) With the written consent of the person who provided the information; (c) In case of death or disability, with the written consent of a personal representative, other person authorized to sue, or the beneficiary of an insurance policy on the person’s life, health or physical condition; (d) When a communication reveals the intended commission of a crime or harmful act and such disclosure is judged necessary by the licensed clinical social worker or licensed social worker to protect any person from a clear, imminent risk of serious mental or physical harm or injury, or to forestall a serious threat to the public safety; (e) When the person waives the privilege by bringing any public charges against the licensee; or (f) When the information is acquired during the course of investigating a report or working on a case of abuse, neglect, financial exploitation, or self-neglect of an eligible adult by a designated adult protective services agency and disclosure of the information is in accordance with the provisions of Section 8 of the Adult Protective Services Act. Id.

Notably, the social worker’s privilege does not apply when abused and/or neglected children are involved. See 325 ILCS 5/4 (Abused and Neglected Child Reporting Act); People v. McKean, 94 Ill.App.3d 502, 418 N.E.2d 1130, 50 Ill.Dec. 136 (2d Dist. 1981).



The privilege can be asserted only by social workers who are registered under the Clinical Social Work and Social Work Practice Act, and as with nearly every other limitation on discovery, the burden of establishing the privilege rests with the person asserting it. In re Westland, 48 Ill.App.3d 172, 362 N.E.2d 1153, 6 Ill.Dec. 331 (4th Dist. 1977). H. [2.19] Medical Studies Privilege Sections 8-2101 and 8-2102 of the Code of Civil Procedure govern the medical studies privilege. Section 8-2101 provides, in relevant part:

All information, interviews, reports, statements, memoranda, recommendations, letters of reference or other third party confidential assessments of a health care practitioner’s professional competence, or other data of [various governmental and private health organizations] used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care or increasing organ and tissue donation, shall be privileged, strictly confidential and shall be used only for medical research, increasing organ and tissue donation, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges or agreements for services. 735 ILCS 5/8-2101.

Section 8-2101 further provides, however, that in any action by a health maintenance organization to determine a physician’s services or staff privileges or in any judicial review thereof, “the claim of confidentiality shall not be invoked to deny such physician access to or use of data upon which such a decision was based.” Id. Section 8-2102 provides that any such information or study

shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency or person. The disclosure of any such information or data, whether proper, or improper, shall not waive or have any effect upon its confidentiality, nondiscoverability, or nonadmissibility. 735 ILCS 5/8-2102.

By its terms, the privilege protects information, documents, and reports that arise from the workings of a peer review committee. Roach v. Springfield Clinic, 157 Ill.2d 29, 623 N.E.2d 246, 191 Ill.Dec. 1 (1993). This unique discovery exemption is designed to encourage doctors to engage in peer-to-peer review, with the goal of improving patient care. The underlying premise is that, “absent the statutory peer-review privilege, physicians would be reluctant to sit on peer-review committees and engage in frank evaluations of their colleagues.” 623 N.E.2d at 251. The question of whether the medical studies privilege applies is a matter of law for the court to decide, but the question of whether specific information, records, notes, memoranda, or data are part of an internal quality control for purposes of the privilege is a factual matter. Frigo v. Silver Cross Hospital & Medical Center, 377 Ill.App.3d 43, 876 N.E.2d 697, 315 Ill.Dec. 385 (1st Dist. 2007). As with other privileges, the party asserting the privilege has the burden of establishing facts sufficient to justify its application. Cretton v. Protestant Memorial Medical Center, Inc., 371 Ill.App.3d 841, 864 N.E.2d 288, 309 Ill.Dec. 422 (5th Dist. 2007).



Information or material need not be created by or for a peer review committee to obtain privileged status. Rather, to be protected from discovery, the information sought need only reveal the “mechanism” of the peer review process. See Anderson v. Rush-Copley Medical Center, Inc., 385 Ill.App.3d 167, 894 N.E.2d 827, 836, 323 Ill.Dec. 801 (2d Dist. 2008). In Anderson, the plaintiff sought to discover certain medical journal articles that a peer review committee had gathered to help assess a deceased patient’s care. Id. The court found that the articles “contributed to the Committee’s deliberations in that they were obtained as part of the information-gathering process and . . . considered prior to the development of the Action Plan.” Id. Consequently, disclosure of the articles would impermissibly reveal the committee’s “internal review process,” and therefore they were protected under the medical studies privilege. Id. Like most other discovery limitations, however, the medical studies privilege has a limited scope. For example, the privilege extends only to material and information that was an integral part, but not the result, of the peer review process. Richter v. Diamond, 108 Ill.2d 265, 483 N.E.2d 1256, 91 Ill.Dec. 621 (1985). In Richter, the Illinois Supreme Court rejected the attempts of a hospital to assert the privilege in response to interrogatory questions probing whether the defendant physician had ever had his medical privileges revoked at the hospital. The court held that just because restrictions may have been the result of a privileged process did not make the restrictions themselves privileged and that the information was therefore discoverable. Id. See also Willing v. St. Joseph Hospital, 176 Ill.App.3d 737, 531 N.E.2d 824, 126 Ill.Dec. 197 (1st Dist. 1988) (privilege did not apply to, among other things, physician’s educational transcripts, applications for appointment to staff and for specific privileges, and letter of resignation or withdrawal, all of which either preceded or were after peer review process). In applying this limitation to the privilege, courts draw a distinction between the ultimate decisions made or actions taken by a peer review committee or a hospital, on the one hand, and the recommendations or internal conclusions of committees that may or may not lead to those results, on the other hand. The former is discoverable; the latter is not. Ardisana v. Northwest Community Hospital, Inc., 342 Ill.App.3d 741, 795 N.E.2d 964, 970, 277 Ill.Dec. 296 (1st Dist. 2003). Nor does the privilege extend to investigations undertaken by hospital administration in general. See Marsh v. Lake Forest Hospital, 166 Ill.App.3d 70, 519 N.E.2d 504, 116 Ill.Dec. 612 (2d Dist. 1988). In Roach, supra, for example, the court held that the statutory privilege applies to studies, reports, and other information that actually belong to a hospital’s quality control committee, but not to information created by or in the possession of a hospital’s staff. 623 N.E.2d at 251 – 252. See also Niven v. Siqueira, 109 Ill.2d 357, 487 N.E.2d 937, 94 Ill.Dec. 60 (1985). I. [2.20] Other Statutory Limitations Several other new or less well-known statutory privileges can be found in the Code of Civil Procedure. Two were enacted in 2006; the third is older, but infrequently invoked. Although these limitations may be more likely to apply in criminal proceedings, they are not by their terms so limited. All can be found in the Code of Civil Procedure. 1. [2.21] The Informant’s Privilege 735 ILCS 5/8-802.3 creates a qualified privilege that prevents discovery of the identity of an informant who witnessed a criminal act and requests anonymity. Specifically, it provides:



(a) Except as provided in subsection (b), if an individual (i) submits information concerning a criminal act to a law enforcement agency or to a community organization that acts as an intermediary in reporting to law enforcement and (ii) requests anonymity, then the identity of that individual is privileged and confidential and is not subject to discovery or admissible in evidence in a proceeding.

(b) There is no privilege under subsection (a) if a court, after a hearing in camera,

finds that the party seeking discovery or the proponent of the evidence has shown that:

(1) the identity of an individual who submits information concerning a criminal

act is sought or offered in a court proceeding involving a felony or misdemeanor;

(2) the evidence is not otherwise available; and

(3) nondisclosure infringes upon a constitutional right of an accused, or there is

a need for the evidence that substantially outweighs the interest in protecting confidentiality.

(c) The court may impose such sanctions as are necessary to enforce its order. Id.

The statutory privilege for informants was cited for the first time in a published opinion in People v. Price, 404 Ill.App.3d 324, 935 N.E.2d 552, 343 Ill.Dec. 544 (1st Dist. 2010). Central to Price was the issue of whether the trial court had properly restricted the defendant’s cross-examination of the eyewitness testimony of a police officer based on the “surveillance privilege,” which “is a common-law privilege that is based on and evolved from the related ‘informant’s privilege.’ ” 935 N.E.2d at 558. The court explained that “[t]he purpose of the informant’s privilege, and consequently of the surveillance privilege, is twofold: to protect sources from retaliation and to encourage their continuing cooperation with law enforcement. . . . However, these public interests must be balanced against a defendant’s constitutional right to a fair trial, making the informant’s privilege a qualified privilege, not an absolute privilege.” [Citations omitted.] Id. Despite being grounded in crime, the informant’s privilege can apply in both criminal and civil cases. See Mahoney v. Gummerson, 2012 IL App (2d) 120391, ¶19, 980 N.E.2d 1220, 366 Ill.Dec. 861. However, the exception to the privilege found in §8-802.3(b), under which disclosure of the identity of an informant can be compelled in certain circumstances, cannot be invoked in civil cases. (“By compelling disclosure only if the court proceeding involves a felony or misdemeanor, section 8-802.3(b) reflects the distinction between a tort and a crime and the principle that an informant’s privilege is ‘arguably greater’ in a civil case than in a criminal one.” 2012 IL App (2d) 120391 at ¶18.)



2. [2.22] Union Agent and Union Member Privilege The second of the relatively new, statutory privileges is the union agent and union member privilege. 735 ILCS 5/8-803.5 creates an absolute privilege that prevents a union agent from being compelled to testify about information learned in the scope of his or her professional duties or representative capacity. Section 8-803.5(a) provides:

Except when required in subsection (b) of this Section, a union agent, during the agency or representative relationship or after termination of the agency or representative relationship with the bargaining unit member, shall not be compelled to disclose, in any court or to any administrative board or agency arbitration or proceeding, whether civil or criminal, any information he or she may have acquired in attending to his or her professional duties or while acting in his or her representative capacity. 735 ILCS 5/8-803.5(a).

The union agent and union member privilege has not been analyzed in any published opinion by an Illinois court, but it was addressed by a federal magistrate in Bell v. Village of Streamwood, 806 F.Supp.2d 1052, 1056 (N.D.Ill. 2011). In that case, the court considered whether to expand the federal common law of privilege to include communications protected by the Illinois statute. Id. Likening the role of a union representative to that of an attorney, the court explained that “there is a strong interest in encouraging an employee accused of wrongdoing to communicate fully and frankly with his union representative, in order to receive accurate advice about the disciplinary process.” Id. Drawing from this principle, the court held that “an employee-union representative privilege will extend to communications made (1) in confidence; (2) in connection with ‘representative’ services relating to anticipated or ongoing disciplinary proceedings; (3) between an employee and his union representative; (4) where the union representative is acting in his or her official representative capacity.” Id. 3. [2.23] Confidentiality of Statements Made to Counselors of Victims of Certain

Crimes The third statutory privilege is actually two related, but different, privileges. The first creates a privilege that prevents the disclosure of statements made to rape crisis personnel by victims of a sexual offense. 735 ILCS 5/8-802.1. Section 8-802.1(d) provides:

Except as provided in this Act, no rape crisis counselor shall disclose any confidential communication or be examined as a witness in any civil or criminal proceeding as to any confidential communication without the written consent of the victim or a representative of the victim as provided in subparagraph (c). 735 ILCS 5/8-802.1(d).

According to the statute, the privilege exists because “many victims hesitate to seek help even where it is available at no cost to them” due to the “fear and stigma that often results from those crimes.” 735 ILCS 5/8-802.1(a). Consequently, “they not only fail to receive needed medical care and emergency counseling, but may lack the psychological support necessary to report the crime and aid police in preventing future crimes.” Id.



Illinois courts have recognized that, as a matter of public policy, the statute creates an absolute privilege for which the trial court need not conduct an in camera examination before denying a defendant’s discovery request. People v. Harlacher, 262 Ill.App.3d 1, 634 N.E.2d 366, 199 Ill.Dec. 527 (2d Dist. 1994). Federal courts have likewise held that the statute creates an absolute privilege that makes a rape counselor’s records undiscoverable. Awalt v. Marketti, 287 F.R.D. 409, 423 (N.D.Ill. 2012); Schabell v. Nozawa-Joffe, No. 08 C 50018, 2010 WL 1704471 (N.D.Ill. Apr. 27, 2010). A related privilege protects the confidentiality of statements made to personnel counseling victims of violent crime. 735 ILCS 5/8-802.2. Section 8-802.2(c) provides:

Confidentiality. Where any victim of a violent crime makes a statement relating to the crime or its circumstances during the course of therapy or consultation to any counselor, employee or volunteer of a victim aid organization, the statement or contents thereof shall not be disclosed by the organization or any of its personnel unless the maker of the statement consents in writing or unless otherwise directed pursuant to this Section. 735 ILCS 5/8-802.2(c).

Although §8-802.2 shares a similar purpose with §8-802.1 — to encourage victims of violent crimes to seek treatment — it does not create an absolute privilege. Rather, a judge can order the counselor to disclose statements made by the victim in certain circumstances. See 735 ILCS 5/8-802.2. Section 8-802.2 has not been cited in any published legal opinion. V. [2.24] COURT RULE LIMITATIONS In addition to the constitutional and statutory limitations discussed in §§2.3 – 2.23 above, limitations on discovery also can be found in the various rules of the Illinois courts. The most significant of these limitations, the attorney-client privilege and the work-product doctrine, have their origins in the common law but are now formally recognized by the Supreme Court Rules. Other less-common privileges or exceptions may exist in local rules. Practitioners should familiarize themselves with those limitations in the jurisdictions in which they practice. A. [2.25] Attorney-Client Privilege Illinois S.Ct. Rule 201(b)(2) recognizes the protection of attorney-client communications from discovery. The rule states, in relevant part:

All matters that are privileged against disclosure [at] trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Id.

Like many other privileges, the attorney-client privilege has its roots in the common law and still properly can be described as a common-law privilege. This chapter discusses it under court rule limitations, however, because the existence of the privilege has been formally recognized by an Illinois Supreme Court Rule.



The attorney-client privilege protects from disclosure communications of any kind seeking legal advice made in confidence by a client to an attorney. Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., 189 Ill.2d 579, 727 N.E.2d 240, 243, 244 Ill.Dec. 941 (2000); Western States Insurance Co. v. O’Hara, 357 Ill.App.3d 509, 828 N.E.2d 842, 293 Ill.Dec. 532 (4th Dist. 2005). The privilege exists to encourage full and frank discussions between a client and a legal advisor by eliminating the fear of compelled disclosure of information. Fischel & Kahn, supra, 727 N.E.2d at 243. As the Illinois Supreme Court explained long ago:

It is essential to the ends of justice that clients should be safe in confiding to their counsel the most secret facts and to receive advice in the light thereof, without peril of publicity. Disclosures made to this end should be as secret and inviolable as if the facts had remained in the knowledge of the client alone. Dickerson v. Dickerson, 322 Ill. 492, 153 N.E. 740, 743 (1926).

The court has cautioned, however, that the privilege is an exception to the general duty to disclose. Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill.2d 103, 432 N.E.2d 250, 256, 59 Ill.Dec. 666 (1982). The party claiming the attorney-client privilege bears the burden of presenting factual evidence that establishes its applicability. Cox v. Yellow Cab Co., 61 Ill.2d 416, 337 N.E.2d 15, 17 (1975); Holland v. Schwan’s Home Service, Inc., 2013 IL App (5th) 110560, ¶195, 992 N.E.2d 43, 372 Ill.Dec. 504. To be entitled to the protection of the attorney-client privilege, a claimant must show that (1) the statement originated in confidence with the understanding that it would not be disclosed, (2) it was made to an attorney acting in his or her legal capacity for the purpose of securing legal advice or services, and (3) it remained confidential. Mack v. Allstate Insurance Co., 2012 IL App (1st) 103739-U, ¶16; Rounds v. Jackson Park Hospital & Medical Center, 319 Ill.App.3d 280, 745 N.E.2d 561, 566, 253 Ill.Dec. 438 (1st Dist. 2001). Once attached, the privilege permanently protects communication unless and until the privilege is waived. Exline v. Exline, 277 Ill.App.3d 10, 659 N.E.2d 407, 213 Ill.Dec. 491 (2d Dist. 1995). Voluntary disclosure of privileged information by the client will waive the privilege. Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶35, 981 N.E.2d 345, 367 Ill.Dec. 20; In re Estate of Hoover, 226 Ill.App.3d 422, 589 N.E.2d 899, 168 Ill.Dec. 499 (1st Dist. 1992), aff’d in part, vacated in part on other grounds, 155 Ill.2d 402 (1993). Even the selective disclosure of confidential communications by the client generally results in a waiver of the privilege. Center Partners, supra; Regan v. Garfield Ridge Trust & Savings Bank, 220 Ill.App.3d 1078, 581 N.E.2d 759, 163 Ill.Dec. 605 (2d Dist. 1991). Significantly, however, because the privilege exists for the client’s benefit, it can be waived only by the client, not by the attorney. Adler v. Greenfield, 2013 IL App (1st) 121066, ¶66, 990 N.E.2d 1219, 371 Ill.Dec. 841; Exline, supra. Moreover, the privilege survives termination of the attorney-client relationship (People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15 (1964)), including the death of the client (DeHart v. DeHart, 2013 IL 114137, ¶69, 986 N.E.2d 85, 369 Ill.Dec. 136; Swidler & Berlin v. United States, 524 U.S. 399, 141 L.Ed.2d 379, 118 S.Ct. 2081 (1998) (holding that attorney-client privilege survives death of client)). Consequently, confidential information cannot be disseminated by the attorney even after the attorney-client relationship ends.



1. [2.26] Scope of the Attorney-Client Privilege A formal attorney-client relationship need not exist for the attorney-client privilege to apply. Instead, it is sufficient that the party asserting the privilege merely was seeking to become a client at the time the allegedly privileged statement was made. See People v. Adam, 51 Ill.2d 46, 280 N.E.2d 205, 207 (1972). In fact, the Illinois Supreme Court has recognized that “[t]he attorney-client privilege exists in order that one who is, or seeks to become a client, may consult freely with counsel.” [Emphasis added.] Id. As a result, any statement made to an attorney in his or her capacity as such while seeking legal advice falls within the scope of the privilege, regardless of whether the statement is made to an attorney in the context of an established attorney-client relationship or merely during a pre-retention consultation. What is more, the privilege extends to communications with agents of the attorney. See People v. Knuckles, 165 Ill.2d 125, 650 N.E.2d 974, 977, 209 Ill.Dec. 1 (1995). The logic is that the assistance of agents often is “indispensible to [the attorney’s] work and the communications of the client . . . necessarily committed to them by the attorney or by the client himself.” Id., quoting People v. Knippenberg, 66 Ill.2d 276, 362 N.E.2d 681, 684, 6 Ill.Dec. 46 (1977). Illinois courts thus have found communications to, among others, secretaries, file clerks, investigators, and psychiatrists employed by an attorney to be protected from discovery by the attorney-client privilege. Knippenberg, supra. Notwithstanding the seemingly broad reach of the attorney-client privilege, several limiting principles exist. First, the mere status of an attorney as such is insufficient on its own to justify application of the attorney-client privilege; rather, the communication in question must include a request for, or the provision of, legal advice. See, e.g., Midwesco-Paschen Joint Venture for Viking Projects v. Imo Industries, Inc., 265 Ill.App.3d 654, 638 N.E.2d 322, 202 Ill.Dec. 676 (1st Dist. 1994) (refusing to apply privilege to cover memorandum from corporation’s senior counsel to corporate manager that requested comments on proposed letter because request for comments could not be considered legal advice). However, “when there is an attorney-client relationship in which an attorney and client have communicated in a professional capacity,” courts generally will apply a rebuttable presumption of privilege. In re Marriage of Decker, 153 Ill.2d 298, 606 N.E.2d 1094, 1108 – 1109, 180 Ill.Dec. 17 (1992). Still, if the privilege is challenged, the party asserting it bears the burden of demonstrating its applicability. Id. A second limiting factor is that the attorney-client relationship (formal or otherwise) must exist at the time the communication is made for the privilege to apply. In Rounds v. Jackson Park Hospital & Medical Center, 319 Ill.App.3d 280, 745 N.E.2d 561, 253 Ill.Dec. 438 (1st Dist. 2001), a medical malpractice action, the defendant hospital appealed an order by the circuit court compelling production of incident reports created by several nurses immediately following the stillborn birth of a fetus. In affirming the lower court, the appellate court concluded that the reports, although documenting unusual events for which litigation may have been “likely,” were records made in the regular course of business rather than confidential communications to an attorney. 745 N.E.2d at 567. The court opined:

If this court would allow documents merely labeled as “special reports” to fall under the umbrella of documents prepared in anticipation of litigation, it would



potentially “insulate so much material from the truth-seeking process” that justice would no longer be served. 745 N.E.2d at 569, quoting Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill.2d 103, 432 N.E.2d 250, 257, 59 Ill.Dec. 666 (1982).

Hence, because the reports were created before any attorney-client relationship and without any indication of “confidence” by the nurses that the reports would not be distributed, the court held that they were not protected by the attorney-client privilege. 745 N.E.2d at 567. Waiver of the attorney-client privilege, perhaps the biggest limitation to its application, is discussed in §2.29 below. 2. [2.27] Necessity of Confidence The attorney-client privilege applies only to communications made in confidence. People v. Williams, 97 Ill.2d 252, 454 N.E.2d 220, 73 Ill.Dec. 360 (1983). A communication is made “in confidence” if the person communicating reasonably believes that its contents will not be revealed to any party outside of the attorney-client relationship. Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶35, 981 N.E.2d 345, 367 Ill.Dec. 20. Inadvertent disclosures, such as the type that might occur if a third party eavesdrops on a private conversation between an attorney and a client, ordinarily do not negate the element of confidentiality. See Edna Selan Epstein and Michael M. Martin, THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK-PRODUCT DOCTRINE, pp. 46 – 48 (2d ed. 1989) (Epstein and Martin). Key to this determination, however, is the reasonableness of the perceived confidentiality. Thus, a client likely would have a reasonable expectation of confidentiality in a private conversation taking place in his or her attorney’s office, even if it was later revealed that the office was bugged, but probably would not have such an expectation about a conversation taking place in a crowded restaurant. As a corollary to the requirement of confidence, communications made by a client to an attorney for the purpose of being disclosed to others outside of the attorney-client relationship are not privileged. Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill.2d 456, 791 N.E.2d 522, 529, 274 Ill.Dec. 430 (2003); People v. Werhollick, 45 Ill.2d 459, 259 N.E.2d 265, 266 (1970). In Werhollick, for example, the trial court had found that communication between a police informant and his attorney relating to the acceptance of an offer of leniency from the prosecution in exchange for testimony against the defendant constituted confidential communication for purposes of the attorney-client privilege, and the appellate court affirmed. The Illinois Supreme Court reversed the lower courts, holding that any offer or acceptance of leniency by the informant through his attorney was not privileged because the informant intended such communication to be conveyed to the prosecution. 259 N.E.2d at 266. The requirement of confidentiality is often confused with the requirement that there be no waiver of the privilege through disclosure. Although courts often treat the requirements as interchangeable, a subtle distinction exists between the two: Confidentiality is a necessary element for the creation of privilege, whereas disclosure destroys the confidence, and thus waives the privilege after it has attached. See Epstein and Martin, p. 44.



3. [2.28] Exceptions to the Attorney-Client Privilege Five principal exceptions exist to the attorney-client privilege. The first is known as the “crime-fraud exception,” which provides that the privilege does not attach “when a client seeks or obtains the services of an attorney in furtherance of criminal or fraudulent activity.” In re Marriage of Decker, 153 Ill.2d 298, 606 N.E.2d 1094, 1101, 180 Ill.Dec. 17 (1992); MDA City Apartments LLC v. DLA Piper LLP (US), 2012 IL App (1st) 111047, ¶25, 967 N.E.2d 424, 359 Ill.Dec. 694. The rationale for this exception is that, in seeking legal counsel in furtherance of criminal activity, the client does not seek advice from an attorney in his or her professional capacity. Decker, supra, 606 N.E.2d at 1101. In Decker, the Illinois Supreme Court quoted with approval the Oregon court of appeals:

In order that the rule [of privilege] may apply there must be both professional confidence and professional employment, but if the client has a criminal object in view . . . one of these elements must necessarily be absent. The client must either conspire with his [counsel] or deceive him. If his criminal object is avowed, the client does not consult his adviser professionally, because it cannot be the [lawyer’s] business to further any criminal object. If the client does not avow his object, he reposes no confidence. . . . The [lawyer’s] advice is obtained by a fraud. Id., quoting State of Oregon v. Phelps, 24 Or.App. 329, 545 P.2d 901, 904 (1976).

As a result, when the crime-fraud exception applies, a client cannot invoke the privilege to bar discovery of otherwise confidential communication. The second major exception to the attorney-client privilege occurs when disclosure is necessary for the protection of the attorney’s own rights. Pedersen & Houpt, P.C. v. Summit Real Estate Group, LLC, 376 Ill.App.3d 681, 877 N.E.2d 4, 9, 315 Ill.Dec. 517 (1st Dist. 2007); Sokol v. Mortimer, 81 Ill.App.2d 55, 225 N.E.2d 496, 501 (1st Dist. 1967).

This exception has commonplace application in Illinois to cases involving actions for attorney’s fees based upon a quantum meruit, as a matter of fairness. It has been equally applied to offers of testimony of an attorney relating to the construction of provisions of the contract he had negotiated with his client. Sokol, supra, 225 N.E.2d at 501.

As the court in Sokol suggested, this exception most often applies when a dispute related to the attorney’s legal fee arises between the attorney and the client. In such a case, the general rule is that an attorney can disclose the confidential communication of a client to the extent necessary to protect the attorney’s rights. The third exception to the attorney-client privilege is the common-interest doctrine. It arises when an attorney acts for two different parties who each have a common interest. This exception provides that, in such circumstances, communications by either party to the attorney are not necessarily privileged in a subsequent controversy between the two parties. Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill.2d 178, 579 N.E.2d 322, 161 Ill.Dec. 774 (1991). The common-interest doctrine frequently applies when an insured and his or her



insurer initially have a common interest in defending an action, but subsequently dispute the applicability of, and amount of coverage provided by, a particular policy. The fourth, albeit less common, exception to the privilege has been recognized when a communication is put at issue by a party who is the holder of the privilege. Waste Management again is illustrative. In Waste Management, Inc. v. International Surplus Lines Insurance Co., 203 Ill.App.3d 172, 560 N.E.2d 1093, 148 Ill.Dec. 496 (1st Dist. 1990), rev’d on other grounds, 144 Ill.2d 178 (1991), the insured and insurer each filed declaratory-judgment actions seeking a determination of their respective rights and liabilities under a certain policy. The trial court held the insured in contempt for refusing to comply with a discovery order requiring the production of material in counsel’s files related to the underlying litigation in which the insured was involved. The appellate court rejected the insured’s contention that granting discovery of the material would create a new and unwarranted exception to the attorney-client privilege because the argument “fail[ed] to recognize that it is the privilege which constitutes an exception to the general rule of disclosure.” 560 N.E.2d at 1098. According to the court, the insured essentially had waived its right to assert the privilege by filing a claim that put the privileged material directly at issue. Thus, the court ordered the insured to turn over the material in question. Id. The fifth, and even less frequently invoked, exception is that communications with an attorney relating to attesting to a document are not privileged. Jackson v. Pillsbury, 380 Ill. 554, 44 N.E.2d 537 (1942). In Jackson, the Illinois Supreme Court was called on to review the propriety of an attorney having testified about discussions he had had with his recently deceased client regarding a trust agreement that the client had executed several years before his death. The attorney had been an attesting witness to one of the trust supplements at issue in the case. Noting that “the rule with respect to confidential communications does not apply to attesting witnesses,” the court found no error in permitting the attorney to testify. 44 N.E.2d at 547. 4. [2.29] Waiver of the Attorney-Client Privilege The attorney-client privilege is not unlimited and can be waived. Western States Insurance Co. v. O’Hara, 357 Ill.App.3d 509, 828 N.E.2d 842, 293 Ill.Dec. 532 (4th Dist. 2005). As noted in §2.25 above, the privilege belongs to the client and not to the attorney. Accordingly, only the client may waive it. Adler v. Greenfield, 2013 IL App (1st) 121066, ¶66, 990 N.E.2d 1219, 371 Ill.Dec. 841. Waiver can be either express or implied. Vroman v. Wenciker, 2013 IL App (1st) 120883-U, ¶23. Sharing otherwise privileged information with a third person will constitute a waiver. See Turner v. Black, 19 Ill.2d 296, 166 N.E.2d 588 (1960). Indeed, the mere presence of third parties, including family members or others present only to provide moral support, during a conversation between the client and the attorney can waive the privilege. People v. Doss, 161 Ill.App.3d 258, 514 N.E.2d 502, 112 Ill.Dec. 839 (4th Dist. 1987). Once waiver has been established, a critical issue is the scope of the waiver. The voluntary disclosure of confidential information by a client does not waive the privilege as to all other nondisclosed communications that may have taken place. In re Grand Jury January 246, 272 Ill.App.3d 991, 651 N.E.2d 696, 700, 209 Ill.Dec. 518 (1st Dist. 1995). However, when a client reveals portions of a conversation with an attorney, those revelations amount to a waiver of the attorney-client privilege as to the remainder of the conversation or communication about the same



subject matter. People v. O’Banner, 215 Ill.App.3d 778, 575 N.E.2d 1261, 159 Ill.Dec. 201 (1st Dist. 1991). In Grand Jury January 246, supra, for example, the appellate court affirmed the trial court’s finding that a client had waived privilege as to details of a conversation she had had with her attorneys about financial matters by making a vague reference to the discussion during a deposition. 5. [2.30] Communications Between an Insured and an Insurance Carrier “[W]here the insurer is under an obligation to defend” the insured, communications between the insured and the insurer are protected by the attorney-client privilege. People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15, 17 (1964); Vroman v. Wenciker, 2013 IL App (1st) 120883-U, ¶21. The logic is that by facilitating the defense, the insurer essentially acts as an agent of the insured for purposes of protecting the insured’s interests. Ryan, supra, 197 N.E.2d at 17. Thus, the attorney-client privilege extends to communication between an insured and an insurer if the insurer has a duty to defend. To assert the privilege in such a case, the insured must establish “(1) the identity of the insured; (2) the identity of the insurance carrier; (3) the [insurance carrier’s] duty to defend the lawsuit; and (4) that a communication was made between the insured and an agent of the insurer.” Holland v. Schwan’s Home Service, Inc., 2013 IL App (5th) 110560, ¶196, 992 N.E.2d 43, 372 Ill.Dec. 504; Chicago Trust Co. v. Cook County Hospital, 298 Ill.App.3d 396, 698 N.E.2d 641, 649, 232 Ill.Dec. 550 (1st Dist. 1998), quoting Rapps v. Keldermans, 257 Ill.App.3d 205, 628 N.E.2d 818, 822, 195 Ill.Dec. 354 (1st Dist. 1993). The privilege also can extend to statements given by an insured to, and diagrams obtained by, an independent contractor retained by an insurer to investigate a claim made against the insured. See Rapps, supra, 628 N.E.2d at 822 (“there is no meaningful distinction between an independent contractor and an employee of an insurer in connection with the applicability of the attorney-client privilege to a statement given by the insured in connection with the investigation of a claim”). Nevertheless, practitioners should take caution, because if a court finds that an independent contractor is more akin to a third party than to an agent of the insured or the insurer, it may decline to extend the privilege to communications with that contractor. Shere v. Marshall Field & Co., 26 Ill.App.3d 728, 327 N.E.2d 92 (1st Dist. 1974) (finding privilege did not protect report written on preprinted form supplied to defendant by independent adjusting service retained by defendant and by defendant’s excess public liability insurer because service was independent contractor that had no obligation to defend). 6. [2.31] Corporate Clients It is well settled that the attorney-client privilege also protects communication between an attorney and a corporate client. Golminas v. Fred Teitelbaum Construction Co., 112 Ill.App.2d 445, 251 N.E.2d 314, 316 (1st Dist. 1969); Radiant Burners, Inc. v. American Gas Ass’n, 320 F.2d 314 (7th Cir. 1963). The more complicated question, however, is whether communications between officers and/or employees of a corporation and the corporation’s attorneys are protected



by the attorney-client privilege. The answer ordinarily depends on whether the officers and directors are a part of a “control group” of the corporation. The control-group test “focuses on the status of the employee within the corporate hierarchy.” Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill.2d 103, 432 N.E.2d 250, 255, 59 Ill.Dec. 666 (1982). According to the Illinois Supreme Court:

[A]n employee whose advisory role to top management in a particular area is such that a decision would not normally be made without his advice or opinion, and whose opinion in fact forms the basis of any final decision by those with actual authority, is properly within the control group. However, the individuals upon whom he may rely for supplying information are not members of the control group. Thus, if an employee of the status described is consulted for the purpose of determining what legal action the corporation will pursue, his communication is protected from disclosure. 432 N.E.2d at 258.

Consistent therewith, under the control-group test, there are two tiers of employees whose communications with corporate counsel are protected by the privilege: (a) decision-makers, i.e., top management; and (b) those employees who directly advise top management and on whose opinions and advice the decision-makers rely. Midwesco-Paschen Joint Venture for Viking Projects v. Imo Industries, Inc., 265 Ill.App.3d 654, 638 N.E.2d 322, 202 Ill.Dec. 676 (1st Dist. 1994). As a corollary, every other employee, including those on whom members of the control group may rely for supplying information in reaching decisions, fall outside of the control group. Consolidation Coal, supra. Not surprisingly, this category of non-control-group members encompasses all manner of corporate employees. See, e.g., Rounds v. Jackson Park Hospital & Medical Center, 319 Ill.App.3d 280, 745 N.E.2d 561, 253 Ill.Dec. 438 (1st Dist. 2001) (supervising nurse not within control group); Knief v. Sotos, 181 Ill.App.3d 959, 537 N.E.2d 832, 130 Ill.Dec. 503 (2d Dist. 1989) (restaurant manager and waitress not within control group); Shere v. Marshall Field & Co., 26 Ill.App.3d 728, 327 N.E.2d 92 (1st Dist. 1974) (independent investigator not within control group). B. [2.32] Work-Product Doctrine S.Ct. Rule 201(b)(2) governs the work-product doctrine in Illinois. It provides, in relevant part:

Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney. S.Ct. Rule 201(b)(2).

Pursuant to this rule, “opinion” work product produced by attorneys in preparation for trial is protected from discovery. The doctrine thus “protect[s] the right of an attorney to thoroughly prepare his case and . . . preclude[s] a less diligent adversary attorney from taking undue advantage of the former’s efforts.” Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill.2d 178, 579 N.E.2d 322, 329, 161 Ill.Dec. 774 (1991); Holland v. Schwan’s Home Service, Inc., 2013 IL App (5th) 110560, ¶205, 992 N.E.2d 43, 372 Ill.Dec. 504.



Relevant material created in preparation for litigation that does not contain opinion data is freely discoverable in Illinois. See Waste Management, supra, 579 N.E.2d at 329 – 330; Neuswanger v. Ikegai America Corp., 221 Ill.App.3d 280, 582 N.E.2d 192, 195, 163 Ill.Dec. 926 (3d Dist. 1991) (videotape of expert examining equipment did not disclose any “mental process” and thus was not protected under work-product doctrine). The Illinois work-product doctrine is narrower than its federal equivalent in this respect. Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill.2d 103, 432 N.E.2d 250, 253, 59 Ill.Dec. 666 (1982). In addition, only material prepared for trial is non-discoverable under the doctrine. The Illinois Supreme Court explored the effect of this limitation in Monier v. Chamberlain, 35 Ill.2d 351, 221 N.E.2d 410, 416 (1966):

[O]nly those memoranda, reports or documents which reflect the employment of the attorney’s legal expertise, those “which reveal the shaping process by which the attorney has arranged the available evidence for use in trial as dictated by his training and experience,” . . . may properly be said to be “made in preparation for trial” as contemplated by that language employed in Rule 19-5(1). [Citation omitted.] Quoting Miller, Recent Discovery, 1963 U.Ill.L.F. 666, 673.

Thus, according to the court, memoranda made by counsel of his or her impression of a prospective witness (as opposed to the actual statements of the witness), trial briefs, material revealing a particular compellation or arrangement of the evidentiary facts for presentation at trial, and similar documents that reveal the attorney’s “mental processes” in developing his or her theory of the case are documents made “in preparation for trial” and exempt from discovery. 221 N.E.2d at 416. The court cautioned, however, that other material “not disclosing such conceptual data but containing relevant and material evidentiary details” must remain subject to the truth-seeking process of discovery. Id. See also Shields v. Burlington Northern & Santa Fe Ry., 353 Ill.App.3d 506, 818 N.E.2d 851, 853, 288 Ill.Dec. 916 (1st Dist. 2004). The work-product doctrine will not limit discovery when an attorney’s otherwise protected notes or memoranda contain the only source of factual material. To gain the benefit of this exception, the party seeking discovery must show “the absolute impossibility of securing similar information from other sources.” Consolidation Coal, supra, 432 N.E.2d at 253; McCombs v. Paulsen, 2013 IL App (3d) 120366-U, ¶47. This exception to the doctrine would be more significant if it was not so difficult to establish in practice. In Miceikis v. Field, 37 Ill.App.3d 763, 347 N.E.2d 320 (1st Dist. 1976), for example, the plaintiff had requested that opposing counsel reduce to writing certain conversations he had with witnesses. The court denied the request, holding that the attorney was under no duty to record all conversations not previously set down in writing. Id. Although the attorney-client privilege and the work-product doctrine both seek to protect confidential information from discovery, there are some important differences between the doctrines. Most notably, unlike the attorney-client privilege, which protects the rights of the client and as such can be waived only by the client, the work-product doctrine protects the rights of the attorney and therefore can be waived only by the attorney. Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., 189 Ill.2d 579, 727 N.E.2d 240, 244 Ill.Dec. 941 (2000). Accordingly, the waiver of one does not constitute a waiver of the other.



C. [2.33] Protective Orders S.Ct. Rule 201(c)(1) governs protective orders in Illinois. It provides:

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. Id.

The rule gives the trial court broad authority to prevent abuses of discovery. Skolnick v. Altheimer & Gray, 191 Ill.2d 214, 730 N.E.2d 4, 246 Ill.Dec. 324 (2000). Courts frequently exercise this authority to protect against the dissemination of “sensitive discoverable materials to third parties or for purposes unrelated to the lawsuit.” May Centers, Inc. v. S.G. Adams Printing & Stationery Co., 153 Ill.App.3d 1018, 506 N.E.2d 691, 694, 106 Ill.Dec. 891 (5th Dist. 1987); Payne v. Hall, 2013 IL App (1st) 113519, ¶12, 987 N.E.2d 447, 369 Ill.Dec. 820. Note that unlike most other discovery privileges, a protective order does not necessarily bar discovery altogether; it may simply regulate the subsequent distribution and use of discovered material. The rule empowers the court to issue protective orders as justice requires, without regard to who requests the relief, and even on the court’s own initiative. Bush v. Catholic Diocese of Peoria, 351 Ill.App.3d 588, 814 N.E.2d 135, 286 Ill.Dec. 485 (3d Dist. 2004). In fact, the party seeking protection from the court need not establish standing to seek such an order. Id. Illinois courts have determined that the “proper use” of the rule requires a “flexible application.” Hall v. Sprint Spectrum L.P., 368 Ill.App.3d 820, 858 N.E.2d 955, 957, 306 Ill.Dec. 897 (5th Dist. 2006). Like the decision to grant a protective order in the first place, the parameters of protective orders are entrusted to the trial court’s discretion (Statland v. Freeman, 112 Ill.2d 494, 493 N.E.2d 1075, 1078, 98 Ill.Dec. 54 (1986)), and an appellate court will alter the terms of an order “only if no reasonable person could adopt the view taken by the circuit court” (Skolnick, supra, 730 N.E.2d at 12). In other words, the entry of a protective order will be reviewed for an abuse of discretion. In determining if an order limiting the scope or use of discovery constitutes an abuse of discretion, the critical inquiry is whether it “prevents the ascertainment of truth or substantially affects a crucial issue in the case.” United Nuclear Corp. v. Energy Conversion Devices, Inc., 110 Ill.App.3d 88, 441 N.E.2d 1163, 1174, 65 Ill.Dec. 649 (1st Dist. 1982); Wausau Insurance Co. v. All Chicagoland Moving & Storage Co., 333 Ill.App.3d 1116, 777 N.E.2d 1062, 1074, 268 Ill.Dec. 139 (2d Dist. 2002). Notwithstanding the lack of defined criteria in the rule itself, a party seeking a protective order must demonstrate that imposition of such an order is warranted. Willeford v. Toys “R” Us-Delaware, Inc., 385 Ill.App.3d 265, 895 N.E.2d 83, 324 Ill.Dec. 83 (5th Dist. 2008). The Fifth District has held that the rule requires that an applicant for a protective order must show “good cause.” May Centers, supra, 506 N.E.2d at 694. The Illinois Supreme Court, however, has noted that “Rule 201(c)(1) does not set out any specific requirements for protective orders. There is only the broad standard ‘as justice requires.’ ” Statland, supra, 493 N.E.2d at 1077. Even when the parties agree to the terms of a protective order, courts generally agree that “[t]he judge, as the



primary representative of the public interest in the judicial process, should not rubber stamp [the stipulated order].” A.P. v. M.E.E., 354 Ill.App.3d 989, 821 N.E.2d 1238, 1246, 290 Ill.Dec. 664 (1st Dist. 2004). Regardless of the standard that a court ultimately applies, the party seeking a protective order should be prepared to offer some reason justifying its imposition. Protective orders generally are issued in two circumstances: (1) when confidential information may be revealed to the public through discovery and (2) when certain evidence may be destroyed. 1. [2.34] Disclosure of Confidential Information Confidential or private information is not, solely by virtue of its classified nature, immune from discovery. Trade secrets, for example, ordinarily are discoverable as long as they are relevant and not privileged. See Brostron v. Warmann, 190 Ill.App.3d 87, 546 N.E.2d 3, 137 Ill.Dec. 379 (3d Dist. 1989). Protective orders therefore are an appropriate mechanism to prevent or limit the disclosure of competitively sensitive or otherwise private information beyond that which is needed for the case. Such a protective order need not be overly complex to be effective. In Bee Chemical Co. v. Service Coatings, Inc., 116 Ill.App.2d 217, 253 N.E.2d 512 (1st Dist. 1969), for example, the plaintiff sought to discover the formulas of a certain lacquer coating produced by the defendant for automotive door panels. The trial court allowed the discovery, but its decision included a protective order providing that the discovery “be used only for purposes of [the] case” and that “trade secrets shall remain trade secrets, and each party has a mutual restriction from using the formulae obtained from the other.” 253 N.E.2d at 514. The appellate court affirmed the order. Key to its determination was that “there [was] no practical method of discovery of [the] formulas from analysis of the product, and disclosure of the formulas [was] the only method of ascertaining the truth.” 253 N.E.2d at 517. See also Computer Teaching Corp. v. Courseware Applications, Inc., 199 Ill.App.3d 154, 556 N.E.2d 816, 145 Ill.Dec. 198 (4th Dist. 1990) (ordering discovery of documents related to design and development of computer program because adequate protective order was in place). 2. [2.35] Destruction of Evidence A protective order also might be appropriate when there is a concern that certain evidence could be altered, used up, or destroyed during testing. Indeed, a court can issue a protective order to control almost any aspect of how, when, and by whom a piece of evidence is tested. See Klick v. R.D. Werner Co., 38 Ill.App.3d 575, 348 N.E.2d 314, 317 (1st Dist. 1976) (“the court should dictate guidelines for the control of the evidence”). The protective order in Sarver v. Barrett Ace Hardware, Inc., 63 Ill.2d 454, 349 N.E.2d 28, 31 (1976), for example, detailed how testing of an allegedly defective hammer by the defendants could take place. Specifically, the order required that the defendants’ expert prepare a detailed testing plan for approval by the court, that the plaintiff be given adequate notice of the test date so that he could have a representative present, and that half of the test samples taken be given to the plaintiff so that additional destruction of the hammer would be unnecessary. Id.



At least one court has suggested that a protective order can be used to facilitate discovery when there is a fear that evidence purposefully is being misplaced or destroyed. In City of Chicago v. Airline Canteen Service, Inc., 64 Ill.App.3d 417, 380 N.E.2d 1106, 1114, 20 Ill.Dec. 897 (1st Dist. 1978), the defendant appealed the entry of a preliminary injunction ordering, among other things, that the defendant give the plaintiff immediate access to certain records after other records in the defendant’s possession disappeared under mysterious circumstances. Noting that “[t]here can be no question that the disappearance of additional records . . . would ‘disadvantage’ [within the meaning of S.Ct. Rule 201(c)(1)], if not irreparably harm, the [plaintiff’s] case,” the appellate court found that the injunction was appropriate because the trial court would have been within its authority under Rule 201(c)(1) to fashion a protective order that achieved the same result. Id. Thus, the court affirmed the preliminary injunction because of its similarity to a protective order. VI. [2.36] COMMON-LAW LIMITATIONS Many statutory and court rule limitations originate in common law. Although the courts and the legislature have formally established most of these limitations in the Illinois statutes or in court rules, at least one continues to exist only in common law — the privilege concerning voting. Specifically, a well-established but infrequently asserted privilege involves the compelled testimony of voting records. A lawful, registered voter in Illinois cannot be compelled to testify for whom or what he or she voted. Sorenson v. Sorenson, 189 Ill. 179, 59 N.E. 555, 556 (1901); Eggers v. Fox, 177 Ill. 185, 52 N.E. 269 (1898). An unlawful voter can claim the privilege against self-incrimination to refuse to testify about whether he or she voted. Stevenson v. Baker, 347 Ill. 304, 179 N.E. 842 (1932). However, if that person testifies without objection that he or she voted, the privilege against self-incrimination is waived, and he or she then can be compelled to testify how he or she voted. Id. See also Michael H. Graham, CLEARY & GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE §505.11 (9th ed. 2009). VII. [2.37] CONCLUSION Discovery exists to ascertain the truth and to help the parties uncover the facts necessary to support their claims and defenses. To this end, the rules of discovery are designed to promote full disclosure of relevant information. As a matter of public policy, however, various privileges and exemptions limit the scope of discovery to encourage the development, and protect the existence, of certain types of confidential and socially beneficial relationships. Although the limitations differ in their application and exceptions, common to all is that they are narrowly construed so as not to undermine the purpose of discovery. Practitioners, therefore, should not assume, without further analysis, that a privilege or exemption from discovery applies.

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was first - Siprut PC 2 - Illinois...was first. published by. IICLE ... limitations narrow the scope of discovery. These limitations are grounded largely on the desire to