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Privileges
CRAIG L. UNRATH MELISSA N. SCHOENBEIN Heyl, Royster, Voelker & Allen, P.C. Peoria
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©COPYRIGHT 2015 BY IICLE .
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I. [7.1] Nature and Purpose of Privilege Rules II. [7.2] State Privileges in Federal Courts III. [7.3] Federal Privileges IV. Waiver of Privileged Communications A. [7.4] Illinois Law B. [7.5] Federal Law V. Attorney-Client Privilege A. [7.6] Nature and Purpose of Attorney-Client Privilege B. Scope and Application 1. [7.7] When Attorney-Client Privilege Applies 2. [7.8] Common Interest Doctrine 3. [7.9] Confidentiality 4. [7.10] Corporate Clients 5. [7.11] Governmental Entities 6. [7.12] Testator Clients 7. [7.13] Communications with Insurer and Defense Counsel 8. [7.14] Waiver 9. [7.15] Subject-Matter Waiver 10. [7.16] Crime-Fraud Exception 11. [7.17] Waiver when Attorney’s Advice Is at Issue in Litigation 12. [7.18] Choice of Law VI. [7.19] Work-Product Privilege VII. Marital Communications Privilege A. [7.20] Nature of Marital Communications Privilege B. [7.21] Marital Communications Privilege in Civil Cases C. Marital Communications Privilege in Criminal Cases 1. [7.22] In General 2. [7.23] Scope and Application D. [7.24] Federal Common-Law Marital Privileges 1. [7.25] Testimonial Privilege 2. [7.26] Communications Privilege 3. [7.27] Duration
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VIII. Medical and Psychiatric Privileges A. Physician-Patient Privilege 1. [7.28] Illinois Statute 2. [7.29] Nature and Scope of Physician-Patient Privilege 3. [7.30] Exceptions and Waiver 4. [7.31] Application to Medical Malpractice Actions in Light of Petrillo B. Therapist-Patient Privilege 1. [7.32] In General 2. [7.33] Exceptions and Waiver C. [7.34] Psychologist-Patient Privilege D. [7.35] Rape Crisis Personnel’s Privilege E. [7.36] Medical Studies Statute F. [7.37] HIV-Related Information IX. [7.38] Accountant’s Privilege X. [7.39] Clergy-Penitent Privilege XI. [7.40] Privilege Against Self-Incrimination XII. [7.41] Trade Secret Privilege XIII. [7.42] Social Worker’s Privilege XIV. [7.43] Reporter’s Privilege XV. [7.44] Fair-Report Privilege XVI. [7.45] Violent Crime Victim Counselor’s Privilege XVII. Miscellaneous Privileges A. B. C. D. E. F. G.
[7.46] [7.47] [7.48] [7.49] [7.50] [7.51] [7.52]
State Secrets and Affairs of State Compulsory Reports and Public Records Proceedings of the Judicial Inquiry Board Informant’s and Surveillance Location Privileges Voter’s Privilege Unemployment Insurance Benefit Claim Records Self-Critical Analysis Privilege
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H. [7.53] Judicial Deliberation Privilege I. [7.54] Attorney’s Litigation Privilege J. [7.55] Deliberative Process Privilege
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I. [7.1] NATURE AND PURPOSE OF PRIVILEGE RULES Rules of evidence are designed to promote the truth-seeking function by ensuring the quality of the evidence presented. People v. Sanders, 99 Ill.2d 262, 457 N.E.2d 1241, 1244, 1245, 75 Ill.Dec. 682 (1983). Rules of privilege, in contrast, exclude relevant evidence and thus work against the truth-seeking function of legal proceedings. People ex rel. Birkett v. City of Chicago, 184 Ill.2d 521, 705 N.E.2d 48, 51, 235 Ill.Dec. 435 (1998). The United States Supreme Court explained the fundamental principles underlying the use of privilege: Testimonial exclusionary rules and privileges contravene the fundamental principle that the “public . . . has a right to every man’s evidence.” . . . As such, they must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” [Citation omitted.] Trammel v. United States, 445 U.S. 40, 63 L.Ed.2d 186, 100 S.Ct. 906, 912 (1980), quoting United States v. Bryan, 339 U.S. 323, 94 L.Ed. 884, 70 S.Ct. 724, 730 (1950), and Elkins v. United States, 364 U.S. 206, 4 L.Ed.2d 1669, 80 S.Ct. 1437, 1449 (1960) (Frankfurter, J., dissenting). See also Norskog v. Pfiel, 197 Ill.2d 60, 755 N.E.2d 1, 16, 257 Ill.Dec. 899 (2001). Accordingly, privileges are strongly disfavored because they are in derogation of the search for truth. In re Marriage of Daniels, 240 Ill.App.3d 314, 607 N.E.2d 1255, 1261, 180 Ill.Dec. 742 (1st Dist. 1992). Or, as Justice Learned Hand commented, “The suppression of truth is a grievous necessity at best.” McMann v. Securities & Exchange Commission, 87 F.2d 377, 378 (2d Cir.), cert. denied, 57 S.Ct. 785 (1937). Illinois Rule of Evidence 501 provides: Except as otherwise required by the Constitution of the United States, the Constitution of Illinois, or provided by applicable statute or rule prescribed by the Supreme Court, the privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by Illinois courts in the light of reason and experience. Privileges under Illinois law are statutory, with the exception of the attorney-client privilege, which has a long-standing common-law existence. Sanders, supra. Most statutory rules of privilege are found in §§8-801 through 8-910, 8-2101, and 8-2102 of the Illinois Code of Civil Procedure, 735 ILCS 5/8-801 through 5/8-910, 5/8-2101, 5/8-2102. The Illinois Supreme Court has “repeatedly concluded that the extension of an existing privilege or establishment of a new one is a matter best deferred to the legislature.” People ex rel. Birkett v. City of Chicago, 184 Ill.2d 521, 705 N.E.2d 48, 51, 235 Ill.Dec. 435 (1998). See Illinois Educational Labor Relations Board v. Homer Community Consolidated School District No. 208, 132 Ill.2d 29, 547 N.E.2d 182, 138 Ill.Dec. 213 (1989) (majority of privileges recognized in Illinois are statutory creations); Sanders, supra (same).
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Courts will not create or apply an evidentiary privilege unless it promotes sufficiently important interests that outweigh the need for probative evidence. Birkett, supra. Dean Wigmore established a four-part test for the creation of a privilege against the disclosure of certain communications: 1. The communications must originate in a confidence that they will not be disclosed. 2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. 3. The relation must be one which in the opinion of the community ought to be sedulously fostered. 4. The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation. [Emphasis in original.] Thomas v. Page, 361 Ill.App.3d 484, 837 N.E.2d 483, 489, 297 Ill.Dec. 400 (2d Dist. 2005), quoting 8 John Henry Wigmore, WIGMORE ON EVIDENCE §2285, p. 527 (McNaughton rev. ed. 1961). See also Homer Community Consolidated School District No. 208, supra, 547 N.E.2d at 185. “A privilege should be invoked only by a party with a direct, legitimate, and personal interest in preserving the confidentiality of the requested information.” Howard v. Forbes, 185 Ill.App.3d 148, 541 N.E.2d 685, 688, 133 Ill.Dec. 474 (4th Dist. 1989). This limitation points toward a key difference between rules of evidence and privileges. When a rule of evidence is violated, only the adverse party may object. If the evidence is privileged, the right to object lies not in the adverse party, but in the person vested with the interest protected by the particular privilege, a person who may or may not be a party to the litigation. 1 Kenneth S. Broun, McCORMICK ON EVIDENCE, §73.1 (7th ed. 2013); Michael H. Graham, GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE §501.1 (10th ed. 2010) (GRAHAM). Generally, the one who invokes a privilege has the burden of showing the facts giving rise to it. Thomas, supra, 837 N.E.2d at 495. “His mere assertion that the matter is confidential and privileged will not suffice.” Cox v. Yellow Cab Co., 61 Ill.2d 416, 337 N.E.2d 15, 17 – 18 (1975), quoting Krupp v. Chicago Transit Authority, 8 Ill.2d 37, 132 N.E.2d 532, 536 (1956). In reviewing a claim of privilege, courts rely on the fundamental principle “that it is the privilege, not the duty to disclose, that is the exception.” Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill.2d 178, 579 N.E.2d 322, 327, 161 Ill.Dec. 774 (1991). “Illinois has ‘a strong policy of encouraging disclosure,’ ” and its courts will, therefore, strictly confine the privilege “within its narrowest possible limits.” Western States Insurance Co. v. O’Hara, 357 Ill.App.3d 509, 828 N.E.2d 842, 847, 293 Ill.Dec. 532 (4th Dist. 2005), quoting Waste Management, supra.
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There is no requirement that suit be filed before a privilege attaches. Midwesco-Paschen Joint Venture for Viking Projects v. Imo Industries, Inc., 265 Ill.App.3d 654, 638 N.E.2d 322, 337 – 328, 202 Ill.Dec. 676 (1st Dist. 1994). All matters that are privileged against disclosure at trial are privileged against disclosure through any discovery proceeding. Supreme Court Rule 201(b)(2). Courts recognize an important distinction between an absolute and a qualified privilege. If information is protected from disclosure as an absolute privilege, “the opposing party cannot defeat the privilege by an ad hoc, case-specific showing of need for the privileged information.” Thomas, supra, 837 N.E.2d at 492, quoting Edward J. Imwinkelried, THE NEW WIGMORE: A TREATISE ON EVIDENCE §3.2.4, pp. 139 – 140 (2002). When dealing with an absolute privilege, the appropriate inquiry is whether the information sought falls within the scope of the privilege. If it does, then the information is protected from disclosure and the inquiry ends. 837 N.E.2d at 492. In contrast, a qualified privilege, such as the reporter’s privilege, can be defeated if the party seeking discovery of the privileged information can demonstrate that his or her need for the material is sufficiently great to overcome the privilege. To meet this burden, the party seeking the information must show “the importance of the inquiry for which the privileged information is sought; the relevance of that information to its inquiry; and the difficulty of obtaining the desired information through alternative means.” 837 N.E.2d at 492, quoting In re Certain Complaints Under Investigation by Investigating Committee of Judicial Council of Eleventh Circuit, 783 F.2d 1488, 1522 (11th Cir. 1986). After a party seeking information protected by a qualified privilege meets its burden, the court balances the demonstrated need for the privileged information against the degree of intrusion on the confidentiality of the privileged communications necessary to satisfy the need. 837 N.E.2d at 492. In contrast to evidentiary rulings, which are generally reviewed under an abuse of discretion standard, the applicability of a statutory evidentiary privilege and any exceptions thereto are matters of law subject to de novo review. Norskog v. Pfiel, 197 Ill.2d 60, 755 N.E.2d 1, 8 – 9, 257 Ill.Dec. 899 (2001); D.C. v. S.A., 178 Ill.2d 551, 687 N.E.2d 1032, 1036 – 1037, 227 Ill.Dec. 550 (1997); Cangelosi v. Capasso, 366 Ill.App.3d 225, 851 N.E.2d 954, 958, 303 Ill.Dec. 767 (2d Dist. 2006). Occasionally, however, courts have addressed the issue as mixed questions of law and fact. For example, in Giangiulio v. Ingalls Memorial Hospital, 365 Ill.App.3d 823, 850 N.E.2d 249, 260, 302 Ill.Dec. 812 (1st Dist. 2006), the court recognized that the applicability of a discovery privilege is a matter of law, but the question of whether specific material falls within the purview of the medical studies statute, 735 ILCS 5/8-2101, et seq., “is a factual question within that legal determination.” In People v. Pawlaczyk, 189 Ill.2d 177, 724 N.E.2d 901, 910, 244 Ill.Dec. 13 (2000), the Illinois Supreme Court addressed whether a trial court’s divestiture of a reporter’s privilege was against the manifest weight of the evidence. The court inexplicably relied on Lawson v. G.D. Searle & Co., 64 Ill.2d 543, 356 N.E.2d 779, 1 Ill.Dec. 497 (1976), for its determination of the standard of review. Lawson dealt with an appeal of a jury’s verdict in a products liability case. No issue of privileges, reporter’s or otherwise, arose in that case.
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II. [7.2] STATE PRIVILEGES IN FEDERAL COURTS Federal Rule of Evidence 501 provides that privileges in the federal courts are to be governed by principles of the federal common law as they may be interpreted in the light of reason and experience. However, in diversity actions in which state law supplies the rule of decision, privileges shall be determined in accordance with state law. Id.; Dunn v. Washington County Hospital, 429 F.3d 689, 693 (7th Cir. 2005). If there is a conflict between two state laws relating to a privilege in a diversity action, a federal court will apply the choice-of-law rules of the forum state to determine which state’s privilege law will apply. Samuelson v. Susen, 576 F.2d 546, 550 (3d Cir. 1978). The rule requiring application of state law to privileges in diversity cases does not apply to procedural rules limiting the discovery and introduction of evidence. See Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 943 (7th Cir. 2005) (“The fact that state law affects relevancy determinations under Fed.R.Evid. 401 and 402, or privileges under Fed.R.Evid. 501, does not mean that federal courts apply state evidence rules in diversity cases under some modern version of the Conformity Act.”). “Even in diversity cases the rules of evidence applied in federal courts are the federal rules of evidence rather than state rules . . . save with respect to matters of presumptions, privilege, and competency of witnesses.” [Citations omitted.] Barron v. Ford Motor Company of Canada Ltd., 965 F.2d 195, 198 – 199 (7th Cir.), cert. denied, 113 S.Ct. 605 (1992). In cases in which the evidence sought to be introduced is relevant to both federal and state law claims, federal law of privilege will be applied. Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981). This does not mean, however, that federal courts should not consider the law of the state in which the case arises in determining whether a privilege should be recognized as a matter of federal law. “A strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy.” United States v. King, 73 F.R.D. 103, 105 (E.D.N.Y. 1976). And where a “state holds out the expectation of protection to its citizens, they should not be disappointed by a mechanical and unnecessary application of the federal rule.” Lora v. Board of Education, 74 F.R.D. 565 (E.D.N.Y. 1977). 664 F.2d at 1061. Accordingly, since Fed.R.Evid. 501 specifies that in federal question cases privileges are to be governed by the common law as interpreted “in the light of reason and experience,” a federal court will consider the law of the state in which the claim arises in determining whether a privilege should be recognized as a matter of federal law. Memorial Hospital, supra. In Clemmer v. Office of Chief Judge, 544 F.Supp.2d 722 (N.D.Ill. 2008), the plaintiff, a court reporter, filed a motion to compel disclosure of all materials from the Illinois Judicial Inquiry Board (JIB) relating to its investigation of her claim for sexual harassment. The JIB claimed that the information was privileged under both the Illinois Constitution and its own rule of procedure.
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Specifically, Article VI of the Illinois Constitution provides that the JIB’s proceedings and all information and material developed by the JIB in the course of its work are confidential. Ill.Const. art. VI, §15(c). The district court acknowledged that, although state law may be considered as a factor in determining whether the asserted privilege applies, federal law remains supreme under Fed.R.Evid. 501. The court carefully balanced the policy considerations underlying the privilege, noting that federal courts have declined to recognize a state evidentiary privilege when doing so would impose a substantial cost to federal substantive and procedural policy. This is particularly true when recognition of a state evidentiary privilege would preclude a plaintiff from pursuing his or her federal claim. Clemmer, supra, 544 F.Supp.2d at 726. Nevertheless, in light of the policy considerations at issue, the fact that the privilege is universally recognized in all 50 states, and the fact that the plaintiff could still pursue her claims without the JIB materials, the court ruled that the records should be protected.
III. [7.3] FEDERAL PRIVILEGES Under Fed.R.Evid. 501, courts are authorized to define new privileges by interpreting common-law principles in the light of reason and experience. Jaffee v. Redmond, 518 U.S. 1, 135 L.Ed.2d 337, 116 S.Ct. 1923, 1927 (1996). The proposed Federal Rules of Evidence originally provided for nine specific testimonial privileges, but Congress rejected an explicit list of privileges in favor of Rule 501’s provision that federal courts may define privileges by applying “common law principles” in light of reason and experience. 6 James Wm. Moore et al, MOORE’S FEDERAL PRACTICE §26.47[3] (3d ed. 1997) (MOORE’S). The Rule thus did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our history, but rather directed federal courts to “continue the evolutionary development of testimonial privileges.” Jaffee, supra, 116 S.Ct. at 1927 – 1928, quoting Trammel v. United States, 445 U.S. 40, 63 L.Ed.2d 186, 100 S.Ct. 906, 907 (1980). Before a privilege may be added to the federal common law, it must be shown that the proposed privilege “promotes sufficiently important interests to outweigh the need for probative evidence.” Jaffe, supra, 116 S.Ct. at 1928, quoting Trammel, supra, 100 S.Ct. at 912. The analysis is made on a case-by-case basis and must consider (a) both the public and private interests that the privilege serves, (b) the evidentiary benefit that would result if the privilege was denied, and (c) the consensus among the states on the issue. 116 S.Ct. at 1928 – 1930. “There has been a notable hostility on the part of the federal judiciary to new privileges, but federal courts occasionally do recognize new privileges,” such as the psychotherapist-patient privilege recognized in 1996. 6 MOORE’S §26.47[3]. The Supreme Court does not favor evidentiary privileges, noting that they “are not lightly created nor expansively construed, for they are in derogation of the search for truth.” United States v. Nixon, 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090, 3108 (1974).
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Exceptions from the general rule disfavoring testimonial privileges may be justified, however, by a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Jaffee, supra, 116 S.Ct. at 1928, quoting Trammel, supra, 100 S.Ct. at 1912. Two of the qualified privileges recognized by federal courts include a. privileges under the First Amendment (often involving journalists who refuse to divulge their sources); and b. the privilege of self-critical analysis (discussed in §7.52 below), which allows organizations to review their practices without fear that the evidence may be used against them (Morgan v. Union Pacific R.R., 182 F.R.D. 261, 264 (N.D.Ill. 1998)). Federal courts also recognize a privilege for law enforcement records, which is intended to prevent harm arising from public disclosure of investigative files. Black v. Sheraton Corporation of America, 564 F.2d 531, 541 (D.C.Cir. 1977). The purpose of this privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation. In re Department of Investigation of City of New York, 856 F.2d 481, 485 (2d Cir. 1988). See Hernandez v. Longini, No. 96 C 6203, 1997 WL 754041 at *3 (N.D.Ill. Nov. 13, 1997), quoting Department of Investigation of City of New York, supra, 856 F.2d at 485. Although the federal common law does not recognize a physician-patient privilege, when a claim is governed by state law, any privilege objections pertaining to that claim are governed by the same state law. “Thus, a state-law physician-patient privilege may be recognized and applied by a federal court to a state-law claim or defense, but not to matters involving federal law.” 6 MOORE’S §26.50[3]. The privilege may also arise under federal statutes and regulations.
IV. WAIVER OF PRIVILEGED COMMUNICATIONS A. [7.4] Illinois Law A privilege, no matter what its origin, may be waived by voluntary disclosure or consent to disclosure “of any significant part of the privileged matter.” GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE §506.1. A privilege may also be waived by failing to assert the privilege at trial or by placing the privileged communication at issue by a party who is a holder of the privilege. Profit Management Development, Inc. v. Jacobson, Brandvik & Anderson, Ltd., 309 Ill.App.3d 289, 721 N.E.2d 826, 835, 242 Ill.Dec. 547 (2d Dist. 1999); Shapo v. Tires ’N Tracks, Inc., 336 Ill.App.3d 387, 782 N.E.2d 813, 819, 270 Ill.Dec. 254 (1st Dist. 2002). The rationale underlying the rule that a privilege is waived when placed at issue is that a party “who asserts a
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claim as a sword should not also be permitted to assert a privilege as a shield to deflect questions regarding the claim.” 6 MOORE’S FEDERAL PRACTICE §26.47[5]. When a client sued her attorney for malpractice, waiver was applicable to earlier communications between the now adversarial parties. In re Marriage of Bielawski, 328 Ill.App.3d 243, 764 N.E.2d 1254, 1263, 262 Ill.Dec. 137 (1st Dist. 2002). Although voluntary disclosure of confidential information does not effectively waive an attorney-client privilege as to all other nondisclosed communications that may have taken place, when a client reveals portions of his or her conversation with his or her 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. In re Grand Jury January 246, 272 Ill.App.3d 991, 651 N.E.2d 696, 700, 209 Ill.Dec. 518 (1st Dist. 1995). The matter subject to waiver varies according to the particular privilege. For example, under the attorney-client privilege, “the content of communication is protected, not the identity of the client or lawyer.” GRAHAM §506.1. Therefore, a statement regarding the fact that a consultation occurred with a particular lawyer does not waive the privilege as to the contents of that communication. Id. In a case of first impression under Illinois state law, the court in Dalen v. Ozite Corp., 230 Ill.App.3d 18, 594 N.E.2d 1365, 171 Ill.Dec. 845 (2d Dist. 1992), addressed three approaches to waiver of the attorney-client privilege due to inadvertent disclosure — a subjective analysis, an objective analysis, and a balancing test. The court explained: Under a subjective analysis, inadvertent disclosure can never result in a true waiver because “there was no intention to waive the privilege, and one cannot waive the privilege without intending to do so.”. . . Under an objective analysis, the court need only confirm that the document was made available to opposing counsel; “the ‘confidentiality’ of the document has been ‘breached’ by the disclosure, thereby destroying the basis for the continued existence of the privilege.”. . . And lastly, under the balancing test, a court considers five factors to determine if a party waived the attorney-client privilege: “(1) the reasonableness of the precautions taken to prevent the disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness.” [Citations omitted.] 594 N.E.2d at 1371, quoting Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., 132 F.R.D. 204, 208 – 209 (N.D.Ind. 1990). The Dalen court ultimately adopted the “balancing test” set forth in Golden Valley, finding that the objective and subjective approaches would “result in decisions based on mere mechanical application rather than a judicial reason and fairness.” 594 N.E.2d at 1372. In a subsequent decision in People v. Murry, 305 Ill.App.3d 311, 711 N.E.2d 1230, 1235, 238 Ill.Dec. 569 (2d Dist. 1999), the court held that under the circumstances presented in that case, the “subjective analysis test” should be applied. The court noted that “[u]nder the subjective analysis test, inadvertent disclosure can never result in a waiver of the privilege because the client had no intention of waiving the privilege, and a client must knowingly waive the privilege.” Id. In Urban Outfitters, Inc. v. DPIC Cos., 203 F.R.D. 376 (N.D.Ill. 2001), DPIC argued that Illinois courts apply the subjective test to determine waiver, and under the subjective test, an
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inadvertent disclosure can never result in waiver of a privilege. The court disagreed, noting that, although the court in Murry, supra, applied the subjective test, Illinois courts apply not only the subjective test, but also the objective and balancing tests. The court explained that the Murry decision explicitly recognized the viability of the other tests. Urban Outfitters, supra, 203 F.R.D. at 380. B. [7.5] Federal Law Three lines of federal authority have been identified involving unintended disclosure of privileged information. 6 MOORE’S FEDERAL PRACTICE §26.47[5]. Some courts have held that any disclosure automatically waives a privilege, even when the privileged communication is listed in a privilege log. Other courts hold that inadvertent disclosure does not constitute waiver because disclosure is generally made by or at the behest of counsel rather than the client — only the privilege holder can waive a privilege. A third approach is to hold that even attorney errors can waive client privileges. The determination is made by applying a balancing test by which the court examines 1. the reasonableness of the efforts to avoid disclosure; 2. any delay in correcting the error; 3. the scope and burden of discovery; 4. the extent of the disclosure; 5. any time constraints related to the production of information; and 6. fairness. Id. Commentary in MOORE’S FEDERAL PRACTICE endorsed the third approach, explaining that a per se rule “taxes the policy of encouraging voluntary production of information” by forcing an increased level of control over production of documents as a result of the increased risk that a privilege may be found to have been waived. Id. “The process of discovery with its infinite fact patterns is ill served by bright line rules, too often producing unfair outcomes.” Id. As pointed out in MOORE’S, privileged information contained in computer records is particularly susceptible to inadvertent disclosure. Federal Rule of Civil Procedure 26(b)(5) was amended to address this problem by providing a procedure for asserting a claim of privilege after the information is disclosed in discovery. 6 MOORE’S §26.47[5]. The Advisory Committee Notes explain that the risk of waiving a privilege and the work necessary to avoid it add to the costs and delay of discovery. When the review is of electronically stored information, the risk of waiver, and the time and effort required to avoid it, can increase substantially because of the volume of electronically stored information and the difficulty in ensuring that all information to be produced has in fact been reviewed. Advisory Committee Notes, 2006 Amendment, Fed.R.Civ.P. 26(b)(5)(B).
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Significantly, the committee explained that Rule 26(b)(5)(B) does not address whether the privilege had been waived by the production. The committee left that question to the courts, which have developed principles for determining whether, and under what circumstances, inadvertent disclosure results in a waiver of the privilege. The rule merely establishes a procedure for bringing the issue before the court.
V.
ATTORNEY-CLIENT PRIVILEGE
A. [7.6] Nature and Purpose of Attorney-Client Privilege The attorney-client privilege is an evidentiary privilege that provides limited protection to communications between attorney and client by prohibiting their unauthorized disclosure in judicial proceedings. In re Marriage of Decker, 153 Ill.2d 298, 606 N.E.2d 1094, 1101, 180 Ill.Dec. 17 (1992). The privilege is recognized as one of “the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 66 L.Ed.2d 584, 101 S.Ct. 677, 682 (1981). See generally Geoffrey C. Hazard, Jr., An Historical Perspective on the Attorney-Client Privilege, 66 Cal.L.Rev. 1061 (1978). The attorneyclient privilege exists in order that one who is, or seeks to become, a client may consult freely with counsel without fear of compelled disclosure of information communicated by the client to the attorney whom he or she has employed or seeks to employ. Decker, supra. The purpose of the attorney-client privilege is to encourage and promote full and frank consultation between a client and legal advisor by removing the fear of compelled disclosure of information. The attorney-client privilege against disclosure is the exception, rather than the rule; thus, it should be strictly confined within its narrowest possible limits. Sharp v. Trans Union L.L.C., 364 Ill.App.3d 64, 845 N.E.2d 719, 727, 300 Ill.Dec. 830 (1st Dist. 2006). The privilege has been described as essential “to the proper functioning of our adversary system of justice.” United States v. Zolin, 491 U.S. 554, 105 L.Ed.2d 469, 109 S.Ct. 2619, 2626 (1989). The attorney-client privilege originated in the reign of Elizabeth I. As the Seventh Circuit noted: It arose from “a consideration for the oath and the honor of the attorney rather than for the apprehensions of his client.” The doctrine that the privilege was that of the attorney rather than the client began to give way to a new concept in the 1700’s. The “new theory looked to the necessity of providing subjectively for the client’s freedom of apprehension in consulting his legal adviser. It proposed to assure this by removing the risk of disclosure by the attorney even at the hands of the law.” By the middle of the 1800’s, the privilege became substantially recognized as that of the client “to include communications made, first, during any other litigation; next, in contemplation of litigation; next, during a controversy but not yet looking to litigation; and, lastly, in any consultation for legal advice, wholly irrespective of litigation or even of controversy.” Radiant Burners, Inc. v. American Gas Ass’n, 320 F.2d 314, 318 (7th Cir.), cert. denied, 84 S.Ct. 330 (1963), quoting 8 John Henry Wigmore, WIGMORE ON EVIDENCE §2290 (McNaughton rev. 1961).
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It is now well established that the privilege belongs to the client, rather than the attorney, although the attorney asserts the privilege on behalf of the client. Thus, only the client may waive this privilege. See People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15, 17 (1964) (“[T]he privilege against disclosure of confidential communications made by a client to an attorney is personal to the client and does not cease upon a termination of the relationship.”). B. Scope and Application 1. [7.7] When Attorney-Client Privilege Applies The essential elements of the attorney-client privilege have been defined as follows: (1) where legal advice of any kind is sought, (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are at his instance permanently protected, (7) from disclosure by himself or the legal adviser, (8) except the protection be waived. 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). As the Illinois Supreme Court noted, this formulation of the privilege “suggests that only communications ‘by the client’ are protected from disclosure, the modern view is that the privilege is a two-way street, protecting both the client’s communications to the attorney and the attorney’s advice to the client.” People v. Radojcic, 2013 IL 114197, ¶40, 998 N.E.2d 1212, 376 Ill.Dec. 279. Some courts have condensed the test into three parts. See, e.g., Pietro v. Marriott Senior Living Services, Inc., 348 Ill.App.3d 541, 810 N.E.2d 217, 226, 284 Ill.Dec. 564 (1st Dist. 2004) (“To be entitled to the protection of the attorney-client privilege, a claimant must show that (1) the statement originated in confidence that it would not be disclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) it remained confidential.”). See also People v. Knippenberg, 66 Ill.2d 276, 362 N.E.2d 681, 683, 6 Ill.Dec. 46 (1977); United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983). The attorney-client privilege is the exception, rather than the rule, and must be confined within its narrowest possible limits. Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill.2d 178, 579 N.E.2d 322, 327, 161 Ill.Dec. 774 (1991). When there is an attorney-client relationship and the “attorney and client have communicated in a professional capacity . . . there is a rebuttable presumption that their communication is privileged.” In re Marriage of Decker, 153 Ill.2d 298, 606 N.E.2d 1094, 1108 – 1109, 180 Ill.Dec. 17 (1992). Nevertheless, the party asserting the attorney-client privilege bears the burden of presenting factual evidence establishing the elements of the privilege. Cox v. Yellow Cab Co., 61 Ill.2d 416, 337 N.E.2d 15, 17 (1975); Pietro, supra. Once the elements of the privilege are established, the party seeking disclosure has the burden of showing that the privilege does not apply. See Hitt v. Stephens, 285 Ill.App.3d 713, 675 N.E.2d 275, 278, 221 Ill.Dec. 368 (4th Dist. 1997). A mere
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assertion that the matter is privileged is not sufficient to survive a challenge to the privilege. Anderson v. St. Mary’s Hospital, 101 Ill.App.3d 596, 428 N.E.2d 528, 530, 56 Ill.Dec. 936 (5th Dist. 1981). Generally, communications are privileged if they are between the lawyer and the client in the course of a confidential and professional relationship. The privilege extends to communications from the attorney to the client, as well as communications from the client to the attorney. Midwesco-Paschen Joint Venture for Viking Projects v. Imo Industries, Inc., 265 Ill.App.3d 654, 638 N.E.2d 322, 327, 202 Ill.Dec. 676 (1st Dist. 1994). However, an attorney’s communication to a client is only privileged if it constitutes legal advice or reveals, directly or indirectly, a client’s confidences. United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990). In order to render a communication between an attorney and client privileged, it must (a) relate to some matter about which the client is seeking advice or (b) put the attorney in possession of information supposed to be necessary to enable him or her to properly advise the client. Debolt v. Blackburn, 328 Ill. 420, 159 N.E. 790, 792 (1927). The scope of the privilege includes statements made by a person seeking to establish an attorney-client relationship as well as statements made after the relationship has been established. “Disclosures made during negotiations for retaining an attorney are within the privilege, even though no employment of the attorney results.” GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE §505.2. See Thorp v. Goewey, 85 Ill. 611 (1877). The attorney-client relationship is not dependent on the payment of fees or the execution of a contract. Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1317 (7th Cir. 1978). Rather, the attorney-client relationship “hinges upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice.” 580 F.2d at 1319, quoting Charles T. McCormick, McCORMICK ON EVIDENCE §88, p. 179 (2d ed. 1972). The communication, however, must be made for the purpose of seeking legal advice from the attorney or in preparation for litigation. For example, even though federal common law does not recognize an accountant-client privilege, communications with an accountant may fall under the attorney-client privilege if the accountant is acting as an agent of an attorney for the purpose of assisting with the provision of legal advice. [W]hat is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice but only accounting service . . . or if the advice sought is the accountant’s rather than the lawyer’s, no privilege exists. In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000), quoting United States v. Brown, 478 F.2d 1038, 1040 (7th Cir. 1973). Communications are not privileged when the attorney is acting in a nonlegal capacity, such as a tax financial advisor or friend. In re Shapiro, 381 F.Supp. 21 (N.D.Ill. 1974); Goltra v. Wolcott, 14 Ill. 89 (1852).
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To fall under the attorney-client privilege, a communication must be directly between the client and the attorney or their respective agents. As Professor Wigmore observed: It has never been questioned that the privilege protects communications to the attorney’s clerks and his other agents (including stenographers) for rendering his services. The assistance of these agents being indispensable to his work and the communications of the client being often necessarily committed to them by the attorney or by the client himself, the privilege must include all the persons who act as the attorney’s agents. [Emphasis in original.] 8 John Henry Wigmore, WIGMORE ON EVIDENCE §2301 (McNaughton rev. ed. 1961). When an agent of the client communicates with the client’s attorney, the agent speaks as the client, and his or her communications are protected to the same extent as though the client were speaking. Lama v. Preskill, 353 Ill.App.3d 300, 818 N.E.2d 443, 449, 288 Ill.Dec. 755 (2d Dist. 2004). See also Knippenberg, supra, 362 N.E.2d at 684 – 685; GRAHAM §505.2. See Annot., 96 A.L.R.2d 125 (1964). This rule has been extended to protect statements made by a defendant to a psychiatric expert retained by defense counsel to assist in the preparation of the defense. People v. Knuckles, 165 Ill.2d 125, 650 N.E.2d 974, 978 – 979, 209 Ill.Dec. 1 (1995). The privilege is not waived by the assertion of the insanity defense, except as to experts called on to testify at trial or whose notes and records are used as the basis for the opinions of other experts. 650 N.E.2d at 981. In People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15, 17 (1964), the court held that a statement of an insured to an insurance adjuster of her company to be given for the purpose of protecting her legal interest was clothed with the attorney-client privilege. The defendant had been in an automobile collision, and an investigator for her insurance company took a written statement from her covering the details of the occurrence. The statement showed the defendant to have been at fault. The company, under its policy, was obligated to conduct the insured’s defense in any civil litigation brought as a result of the collision. Later, criminal charges were filed against the defendant, and her insurance company turned over her written statement to her privately retained defense counsel. The attorney refused to produce the statement in response to a state’s attorney’s subpoena and was held in contempt. The Ryan court reversed, holding that the communication was privileged because it was given to the adjuster as the client’s agent for the purposes of transmitting the communication to attorney. Id. The attorney-client privilege is not a blanket protection for all communications between an attorney and a client. The communication must be confidential. Accordingly, when a client voluntarily discloses information to an attorney in the presence of third parties who are not agents of either the client or the attorney, the information is not privileged. In re Walsh, 623 F.2d 489, 495 (7th Cir. 1980); In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790, 794, 127 Ill.Dec. 708 (1988). The rule reflects two general principles: (a) only confidential matters are protected by the attorney-client privilege; and (b) a party should not be allowed to exploit selective disclosures for tactical advantage. In re Consolidated Litigation Concerning International Harvester’s Disposition of Wisconsin Steel, 666 F.Supp. 1148, 1153 (N.D.Ill. 1987). Revealing information in the presence of a third party indicates that the client did not intend for the communication to be
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confidential, and so the privilege does not apply. People v. Doss, 161 Ill.App.3d 258, 514 N.E.2d 502, 505, 112 Ill.Dec. 839 (4th Dist. 1987). However, if the attorney-client communications are disclosed to a non-agent to assist the attorney in rendering legal advice, the privilege applies. Disposition of Wisconsin Steel, supra, 666 F.Supp. at 1156 – 1157. Factors to consider in determining whether a communication is confidential include “the purpose for which the statement was required, the understanding by its maker as to that purpose, [and] the extent to which its confidentiality was maintained after it was made and in the course of its transmission to counsel.” Cox, supra, 337 N.E.2d at 18. For example, a client’s communications to an attorney for the purpose of being disclosed to others are not privileged. People v. Werhollick, 45 Ill.2d 459, 259 N.E.2d 265, 266 (1970). A client’s name normally is not privileged information. Disclosure of the client’s identity is required to provide opposing counsel and the court with proof that “the client whose secret is treasured is actual flesh and blood.” Shatkin Investment Corp. v. Connelly, 128 Ill.App.3d 518, 470 N.E.2d 1230, 1235, 83 Ill.Dec. 810 (2d Dist. 1984), quoting Annot., 16 A.L.R.3d 1047, 1050 (1967). An exception arises when divulging the identity of an attorney’s client would result in substantial prejudice to the client. People v. Williams, 97 Ill.2d 252, 454 N.E.2d 220, 241, 73 Ill.Dec. 360 (1983). The sort of prejudice to the client that may give rise to this exception includes, for example, danger of physical harm to the client and certain limited situations in which the disclosure of the client’s identity might incriminate the client. See People v. Doe, 55 Ill.App.3d 811, 371 N.E.2d 334, 336, 13 Ill.Dec. 617 (2d Dist. 1977). See also Annot., 16 A.L.R.3d 1047 (1967). For example, the identity of a person who paid legal fees to an attorney to represent a defendant charged in a drug conspiracy was protected by the attorney-client privilege when the disclosure of the fee payer’s identity would necessarily have revealed the client’s involvement in the conspiracy and thus revealed his motive for seeking the advice. In re Grand Jury Proceeding, Grand Jury 1988-2 Cherney, 898 F.2d 565, 567 (7th Cir. 1990). The attorney-client privilege survives the termination of the relationship. People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15 (1964); Taylor v. Taylor, 45 Ill.App.3d 352, 359 N.E.2d 820, 3 Ill.Dec. 961 (5th Dist. 1977). If the communication was privileged when it was made, it remains permanently privileged unless the privilege is waived. Thus, if a party consults an attorney for advice about anticipated litigation or reports a potential claim to an insurer with a duty to defend, the communication is privileged and remains privileged when the insurer later brings suit against someone else and does not name the person who gave the statement as a defendant. Exline v. Exline, 277 Ill.App.3d 10, 659 N.E.2d 407, 410 – 411, 213 Ill.Dec. 491 (2d Dist. 1995). Similarly, the privilege survives the death of the client, except in the case of a will contest. Hitt v. Stephens, 285 Ill.App.3d 713, 675 N.E.2d 275, 278 – 279, 221 Ill.Dec. 368 (4th Dist. 1996). 2. [7.8] Common Interest Doctrine The general rule is that material that is otherwise privileged is discoverable if it has been disclosed to a third party. United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983). An exception to this rule arises when the third party shares a common interest with the disclosing
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party that is adverse to that of the party seeking discovery. In such a case, any existing privilege is not waived. United States v. Evans, 113 F.3d 1457, 1467 – 1468 (7th Cir. 1997); United States v. McPartlin, 595 F.2d 1321, 1336 – 1337 (7th Cir.), cert. denied, 100 S.Ct. 65 (1979). This is known as the “common interest rule” or “joint defense doctrine” or sometimes the “common defense rule.” Evans, supra, 113 F.3d at 1467. The doctrine effectively extends the attorney-client privilege to otherwise nonconfidential communications in limited circumstances. United States v. BDO Seidman, LLP, 492 F.3d 806, 816 (7th Cir. 2007). It serves to protect the confidentiality of communications passing from one party to the attorney for another party when a joint defense effort or strategy has been decided on and undertaken by the parties and their respective counsel. Evans, supra, 113 F.3d at 1467. The legal principle governing application of the common interest doctrine “appears to be similar” under Illinois and federal law. Grochocinski v. Mayer Brown Rowe & Maw LLP, 251 F.R.D. 316, 326 (N.D.Ill. 2008). The rationale underlying the doctrine is to enable counsel for clients facing a common litigation opponent to exchange privileged documents and information, including attorney work product, in order to adequately prepare a defense without waiving any privilege. Evans, supra. The privilege has even been extended to communications with potential defendants. Schachar v. American Academy of Ophthalmology, Inc., 106 F.R.D. 187, 191 (N.D.Ill. 1985). To qualify for the privilege, the communication must have been made in confidence. See United States v. Keplinger, 776 F.2d 678, 701 (7th Cir. 1985). The party claiming the privilege must demonstrate that (a) the documents were made in the course of a joint defense effort and (b) the documents were designed to further that effort. United States v. Bay State Ambulance & Hospital Rental Service, Inc., 874 F.2d 20, 28 (1st Cir. 1989). Courts have recognized the common defense rule for over a century. See McPartlin, supra, 595 F.2d at 1336: Uninhibited communication among joint parties and their counsel about matters of common concern is often important to the protection of their interests. . . . In criminal cases it can be necessary to a fair opportunity to defend. Therefore, waiver is not to be inferred from the disclosure in confidence to a co-party’s attorney for a common purpose. [Citation omitted.] The privilege arises out of the common interest in the outcome of the litigation. As one court explained: While often arising in the context of a joint defense, the common interest doctrine more generally applies to any parties who have a “common interest” in current or potential litigation, either as actual or potential plaintiffs or defendants. . . . To maintain the privilege, the common interest must relate to a litigation interest, and not merely a common business interest. . . . If there is some or even substantial overlap between the litigation and business interests, the common interest doctrine still applies so long as a “community of interest” can be established with respect to the documents. . . . “It is the commonality of interests which creates the exception,
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not the conduct of the litigation.” [Citations omitted.] Dexia Credit Local v. Rogan, 231 F.R.D. 268, 273 (N.D.Ill. 2004), quoting Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill.2d 178, 579 N.E.2d 322, 329, 161 Ill.Dec. 774 (1991). In general, different persons or companies have a common interest when they have an identical legal interest in the subject matter of a communication between an attorney and a client concerning legal advice. Allendale Mutual Insurance Co. v. Bull Data Systems, Inc., 152 F.R.D. 132 (N.D.Ill. 1993). The interest must be “identical, not similar, and be legal, not solely commercial.” 152 F.R.D. at 140. Contrary authority is found in Dexia, supra, holding that the interest need not be identical: The common interest rule “is not limited to parties who are perfectly aligned on the same side of a single litigation.”. . . Rather, the parties who assert a common interest as the basis for their assertion of privilege (where otherwise it would not exist due to the shared communications), must simply demonstrate “actual cooperation toward a common legal goal” with respect to the documents they seek to withhold. [Citations omitted.] 231 F.R.D. at 273, quoting Cadillac Insurance Co. v. American National Bank of Schiller Park, No. 89 C 3267, 1992 WL 58786 at *5 (N.D.Ill. Mar. 12, 1992), and Strougo v. BEA Associates, 199 F.R.D. 515, 520 (S.D.N.Y. 2001). See also Grochocinski, supra, 251 F.R.D. at 327 (holding that rule is not limited to “parties who are perfectly aligned on the same side of a single litigation, rather the parties asserting the privilege must simply demonstrate actual cooperation towards a common legal goal with respect to the documents they seek to withhold”). If litigation and business interests overlap, the common interest doctrine still applies as long as a “community of interest” can be established with respect to the documents. Dexia, supra, 231 F.R.D. at 273. “It is the commonality of interests which creates the exception, not the conduct of the litigation.” Waste Management, supra, 579 N.E.2d at 329. The attorney-client privilege does not, however, apply to communications between the codefendants or potential codefendants and jointly retained counsel if a subsequent dispute arises among the codefendants so that they later become adversaries in litigation. Waste Management, supra, 579 N.E.2d at 328 – 329. The doctrine provides that “when an attorney acts for two different parties who each have a common interest, communications by either party to the attorney are not necessarily privileged in a subsequent controversy between the two parties.” 579 N.E.2d at 328. This is particularly true when an insured and his or her insurer initially have a common interest in defending an action against the former, and there is a possibility that those communications might play a role in a subsequent action between the insured and his or her insurer. Id. The common interest doctrine has been relied on to defeat a claim of privilege when an attorney has provided joint or simultaneous representation of the parties. 579 N.E.2d at 328 – 329.
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§7.9
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3. [7.9] Confidentiality In addition to the attorney-client privilege, attorneys are also bound under rules of confidentiality, which encompass the attorney-client evidentiary privilege as well as the attorney’s fiduciary duty to the client. Profit Management Development, Inc. v. Jacobson, Brandvik & Anderson, Ltd., 309 Ill.App.3d 289, 721 N.E.2d 826, 835, 242 Ill.Dec. 547 (2d Dist. 1999). A lawyer’s ethical obligation to guard the confidences and secrets of his or her client is broader than the attorney-client privilege. In re January 1976 Grand Jury, 534 F.2d 719, 728 (7th Cir. 1976). Unlike the evidentiary privilege, the ethical precept exists “without regard to the nature or source of information or the fact that others share the knowledge.” 534 F.2d at 728 n.8, quoting ABA Model Code of Professional Responsibility, EC 4-4 (1974). Rule 1.6 of the Illinois Rules of Professional Conduct of 2010 provides: (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a crime in circumstances other than those specified in paragraph (c); (2) to prevent the client from committing fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services; (4) to secure legal advice about the lawyer’s compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or (6) to comply with other law or a court order. (c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
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(d) Information received by a lawyer participating in a meeting or proceeding with a trained intervener or panel of trained interveners of an approved lawyers’ assistance program, or in an intermediary program approved by a circuit court in which nondisciplinary complaints against judges or lawyers can be referred, shall be considered information relating to the representation of a client for purposes of these Rules. “Unlike the evidentiary attorney-client privilege, the rule of confidentiality applies not only during judicial proceedings, but at all times, and to a client’s secrets as well as confidences.” Profit Management, supra, 721 N.E.2d at 835. However, if the client waives the privilege, the protected information is no longer confidential, and RPC 1.6 does not apply. Also, when ordered to divulge a client confidence or secret by final court order after the court has properly determined that the information sought is not privileged, an attorney must disclose the information to the court. In re Marriage of Decker, 153 Ill.2d 298, 606 N.E.2d 1094, 1103, 180 Ill.Dec. 17 (1992). 4. [7.10] Corporate Clients In order to determine whether corporate communications fall within the attorney-client privilege, the Illinois Supreme Court adopted the “control-group” test. Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill.2d 103, 432 N.E.2d 250, 256 – 258, 59 Ill.Dec. 666 (1982). Under this test, an attorney’s communication with an employee will be privileged only if the employee is a member of top management or an advisor to top management whose role is “such that a decision would not normally be made without his advice or opinion.” 432 N.E.2d at 258. The control-group test focuses on the status of the employee within the corporate hierarchy: [I]f the employee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney, or if he is an authorized member of a body or group which has that authority, then, in effect, he is (or personifies) the corporation when he makes his disclosure to the lawyer and the privilege would apply. In all other cases the employee would be merely giving information to the lawyer to enable the latter to advise those in the corporation having the authority to act or refrain from acting on the advice. 432 N.E.2d at 255, quoting City of Philadelphia v. Westinghouse Electric Corp., 210 F.Supp. 483, 485 (E.D.Pa. 1962). The Illinois Supreme Court found that the control-group test struck a reasonable balance by protecting consultations with counsel by those who are the decision-makers or who substantially influence corporate decisions while minimizing the amount of relevant factual material that is immune from discovery. Consolidation Coal, supra, 432 N.E.2d at 257. Accordingly, the privilege protects the communications of two tiers of corporate employees. The first tier consists of the decision-makers or top management, and the second tier consists of those employees who directly advise top management and on whose opinions and advice the
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decision-makers rely. Mlynarski v. Rush Presbyterian-St. Luke’s Medical Center, 213 Ill.App.3d 427, 572 N.E.2d 1025, 157 Ill.Dec. 561 (1st Dist. 1991). The person claiming the privilege has the burden of showing facts that give rise to the privilege, of showing that the communication originated in a confidence that it would not be disclosed, of showing that it was made to an attorney acting in his or her legal capacity for the purpose of securing legal advice or services, and of showing that it remained confidential. Consolidation Coal, supra, 432 N.E.2d at 257. Distribution of otherwise privileged materials to individuals outside the corporation’s control group destroys the privilege. Sterling, supra, 782 N.E.2d at 906. A trial court’s determination of whether an employee is a member of a control group is reviewed de novo. See Midwesco-Paschen Joint Venture for Viking Projects v. Imo Industries, Inc., 265 Ill.App.3d 654, 638 N.E.2d 322, 326, 202 Ill.Dec. 676 (1st Dist. 1994). But see Niven v. Siqueira, 109 Ill.2d 357, 487 N.E.2d 937, 943, 94 Ill.Dec. 60 (1985) (“The applicability of a discovery privilege is a matter of law for the court to determine, but the question of whether specific materials are part of a medical study is a factual question within that legal determination.”). Two federal district court decisions have extended the rule established in Consolidation Coal to encompass nonemployee agency relationships. In Caremark, Inc. v. Affiliated Computer Services, Inc., 192 F.R.D. 263, 267 (N.D.Ill. 2000), the court found this to be a logical extension of the holding in Consolidation Coal in the narrow situation in which the corporation gives express authority to a nonemployee agent to communicate with attorneys on behalf of the corporate principal for the purpose of receiving legal advice. The court found the holding to be squarely within the public policy articulated in Consolidation Coal that a reasonable balance must be struck between “protecting consultations with counsel by those who are the decision makers or who substantially influence corporate decisions and by minimizing the amount of relevant factual material which is immune from discovery.” Caremark, supra, 192 F.R.D. at 267, quoting Consolidation Coal, supra, 432 N.E.2d at 257. See also Trustmark Insurance Co. v. General & Cologne Life Re of America, No. 00 C 1926, 2000 WL 1898518 (N.D.Ill. Dec. 20, 2000). The top management possesses the authority to assert and waive the attorney-client privilege. Therefore, when control of a corporation passes to new management, these new managers have the power to waive the attorney-client privilege with respect to communications made by former managers. Furthermore, the former officers and directors lose their power to assert the privilege without the consent of the new management, even as to statements the former management made to counsel regarding corporate matters. Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 85 L.Ed.2d 372, 105 S.Ct. 1986, 1991 (1985). The attorney-client privilege of a divested corporate subsidiary belongs to the acquiring company rather than remaining with the former parent company. Therefore, the acquiring company controls the acquired subsidiary’s privilege with respect to the attorney-client communications between the subsidiary and the former parent that occurred before or that relate to the sale of the subsidiary. Medcom Holding Co. v. Baxter Travenol Laboratories, Inc., 689 F.Supp. 841, 842 – 843 (N.D.Ill. 1988).
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The use of a single legal department to provide advice to subsidiary corporations as well as to a parent corporation can have serious consequences when one of the subsidiaries is sold. In a case in which the parent corporation’s law department provided legal advice to the officers of both the parent and the subsidiary, the court held that the privilege did not apply in a later dispute between the parent and the subsidiary as to any documents created before the sale was closed. Yorke v. Santa Fe Industries, Inc. (In re Santa Fe Trail Transportation Co.), 121 B.R. 794, 799 (Bankr. N.D.Ill. 1990). Communications between counsel for the corporation and non-control-group employees may be privileged under the Illinois rule when the employees could face liability for their conduct and the employer provides insurance coverage with a duty to defend the employees, either through a commercial carrier or through self-insurance. Buckman v. Columbus-Cabrini Medical Center, 272 Ill.App.3d 1060, 651 N.E.2d 767, 770, 209 Ill.Dec. 589 (1st Dist. 1995). In Buckman, the court upheld the application of the privilege to a hospital-employed nurse. The nurse faced possible liability in the suit and was directed by the hospital to the hospital’s attorney for advice. Following this, the hospital’s attorney appeared on behalf of the employee at the deposition. The court reasoned that the circumstances indicated that the employee “received legal advice and services.” 651 N.E.2d at 771. The United States Supreme Court rejected the control-group test in Upjohn Co. v. United States, 449 U.S. 383, 66 L.Ed.2d 584, 101 S.Ct 677, 684 (1980), finding that it “frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees” who are not part of the control group. The Court noted that the privilege exists not only to protect the giving of professional advice, but also the giving of information to the lawyer, which allows him or her to provide informed advice. 101 S.Ct. at 683. In Upjohn, supra, the corporation conducted an internal investigation regarding potentially illegal bribes paid to foreign governments. Corporation counsel circulated a questionnaire that sought detailed information concerning the payments from corporate officers and employees. Later, the IRS issued a subpoena seeking, among other things, written questionnaires sent to a manager of Upjohn’s foreign affiliates and memoranda or notes of interviews with these employees. Upjohn refused to produce the documents on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of its attorneys in anticipation of litigation. Employing the control-group test, the court of appeals held that the privilege did not apply to the extent that the communications were made “by officers and agents not responsible for directing Upjohn’s actions in response to legal advice.” 101 S.Ct at 682. The Supreme Court reversed, finding that the control-group test would lead to unpredictable results. “An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” 101 S.Ct at 684. Since the communications concerned matters within the scope of the employees’ corporate duties, and the employees were aware that they were being questioned in order for the corporation to obtain legal advice, the Court held that the communications were privileged. Two years later, the Illinois Supreme Court adopted the control-group test in Consolidation Coal, supra, 432 N.E.2d at 256 – 258. The court acknowledged the Supreme Court’s decision in
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Upjohn, noting that while “the Supreme Court rejected this test as inadequate, it declined to articulate an alternative standard to govern future cases in the Federal courts.” 432 N.E.2d at 256. 5. [7.11] Governmental Entities The attorney-client privilege also applies to governmental entities. In re Information To Discipline Certain Attorneys of Sanitary Dist. of Chicago, 351 Ill. 206, 184 N.E. 332, 357 (1932) (“No good reason appears why a municipal corporation as well as a private individual may not have privileged communications with its attorney.”). Thus, consultation between an attorney and a governmental body concerning prospective or pending litigation is privileged. The attorney-client privilege also applies to communications between prosecutors (as attorneys) and client agencies within the government. United States v. Zingsheim, 384 F.3d 867, 871 (7th Cir. 2004). See also, e.g., Swidler & Berlin v. United States, 524 U.S. 399, 141 L.Ed.2d 379, 118 S.Ct. 2081 (1998). “[W]hen legal advice is given to or for the benefit of a governmental body, it rather than an individual officeholder enjoys the benefit of this privilege.” Zingsheim, supra, 384 F.3d at 871 – 872, citing In re Witness Before Special Grand Jury 2000-2, 288 F.3d 289 (7th Cir. 2002). 6. [7.12] Testator Clients The attorney-client privilege survives the death of a client unless there is a will contest. Hitt v. Stephens, 285 Ill.App.3d 713, 675 N.E.2d 275, 278, 221 Ill.Dec. 368 (4th Dist. 1997), citing Paul Rice, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES §2:5, p. 69; §2:6, pp. 70 – 71 (1993); Glover v. Patten, 165 U.S. 394, 41 L.Ed. 760, 17 S.Ct. 411 (1897). “The theory underlying this limited exception is that a decedent would (if one could ask him) waive the privilege in order that the distribution scheme he actually intended be put into effect.” Hitt, supra, 675 N.E.2d at 278. In Lamb v. Lamb, 124 Ill.App.3d 687, 464 N.E.2d 873, 877 – 878, 80 Ill.Dec. 8 (4th Dist. 1984), the appellate court stated: We deem the following to express the rule concerning the privilege after the death of the client: “While upon the death of the client, the [attorney-client] privilege survives in favor of his estate in regard to claims by outsiders against the estate [citation], it does not apply to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction. . . . While it had been suggested that the attorney may not disclose facts which would tend to invalidate the will [citation], and that he may not disclose confidential communications [citation], the actual holding of the cases which pass upon the point has been that neither side may assert the privilege.” (Emphasis added.) Cleary & Graham, HANDBOOK OF ILLINOIS EVIDENCE §505.7, at 212 – 13 (3d ed. 1979).
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In Hitt, supra, the court addressed the reasons underlying the rule, noting: Estate planning is an extremely personal and private endeavor, and may be based on considerations one would prefer never to reveal. The attorney-client privilege presumes that a client wishes his communications with his attorney to remain secret until proved otherwise. The burden is on the party seeking disclosure to show an exception to the privilege. Absent a showing of some appropriate exception, such as the will contest exception, it will remain intact. 675 N.E.2d at 279. When there is no will contest, the heirs to an estate do not have the authority to waive the attorney-client privilege to obtain the decedent’s estate planning files. 675 N.E.2d at 278 – 279. 7. [7.13] Communications with Insurer and Defense Counsel When the insurance carrier has a duty to select an attorney and provide a defense to its insured, statements made by an insured to his or her insurance carrier or its investigator fall within the attorney-client privilege. People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15, 17 (1964); Martin v. Clark, 92 Ill.App.3d 518, 415 N.E.2d 30, 32, 47 Ill.Dec. 305 (3d Dist. 1980); Rapps v. Keldermans, 257 Ill.App.3d 205, 628 N.E.2d 818, 822, 195 Ill.Dec. 354 (1st Dist. 1993) (insured’s statements to independent contractor retained by carrier to investigate claim are privileged). To establish the privilege, the insured “need only establish: (1) the insured’s identity; (2) the insurance carrier’s identity; (3) the insurance carrier’s duty to defend the insured; and (4) that a communication was made between the insured and an agent of the insurance carrier.” Exline v. Exline, 277 Ill.App.3d 10, 659 N.E.2d 407, 410, 213 Ill.Dec. 491 (2d Dist. 1995). Moreover, if a statement is made to an insurer by an insured that faces a possibility of liability, it remains privileged in later litigation, even if the insured is not one of the defendants. Id. In Chavez v. Watts, 161 Ill.App.3d 664, 515 N.E.2d 146, 152, 113 Ill.Dec. 337 (1st Dist. 1987), appeal denied, 118 Ill.2d 541 (1988), the defendant gave a taped statement to an investigator. Later, at his deposition, defense counsel gave the plaintiff’s attorney a copy of the investigator’s summary of that statement. The appellate court found that the statement to the investigator was privileged because the statement to the insurance company was privileged. Because the privilege was not voluntarily waived by the defendant himself, the court found it immaterial that defense counsel gave the plaintiff’s attorney a copy of the investigator’s summary. In addition, allowing the investigator to testify would have improperly apprised the jury of the existence of the defendant’s insurance coverage. An insured’s communications with his or her insurer are not privileged when two potentially adverse parties to an action are insured by the same carrier. In Monier v. Chamberlain, 35 Ill.2d 351, 221 N.E.2d 410, 415 – 416 (1966), the court noted that all statements obtained by an insurer’s agents, employees, or investigators are protected under the attorney-client privilege. In
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§7.14
ILLINOIS CIVIL TRIAL EVIDENCE
that case, however, Country Mutual was the liability insurer of both parties to the accident in question — a fact of which both parties became aware shortly after the occurrence. The court explained: Until the relative legal positions of the individual insureds have been established as plaintiff and defendant, and even later, should a counterclaim be filed, Country Mutual remains under a continuing obligation to defend either insured should a complaint be filed against either. It may, during this period, or at least until independent counsel has been retained by either insured, require statements from both insureds concerning the details of the occurrence in question under the ordinary co-operation clauses of the insurance policies. Under these circumstances, we believe that one of the essential conditions precedent to the attachment of the attorney-client privilege, i.e., that the communications must originate in a confidence that they will not be disclosed, cannot be said to exist. (Cf. Dickerson v. Dickerson, 322 Ill. 492, 500, 501, 153 N.E. 740.) Making a statement to an agent who is also, at the same time, an agent for a potential adversary is scarcely the type of communication contemplated by the privilege. 221 N.E.2d at 415 – 416. The court concluded that, under these circumstances, the insured’s communications with its defense counsel were not privileged because (a) the inherent duty to cooperate in all insurance policies required the insured to disclose such communications and (b) the defense counsel represented the interests of both the insured and the insurer, so the common interest doctrine compelled disclosure of communications with the attorney. See Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill.2d 178, 579 N.E.2d 322, 328 – 329, 161 Ill.Dec. 774 (1991). 8. [7.14] Waiver The attorney-client privilege belongs to the client, and only the client may waive it. In re Marriage of Decker, 153 Ill.2d 298, 606 N.E.2d 1094, 1101, 180 Ill.Dec. 17 (1992). The client may waive the attorney-client privilege by giving testimony concerning conversations with the attorney. The attorney may then testify with respect to those communications or be compelled to testify even though the attorney’s testimony contradicts that of the client and even though the client has since died. Turner v. Black, 19 Ill.2d 296, 166 N.E.2d 588, 594 (1960). “Any disclosure by the client is inherently inconsistent with the policy behind the privilege of facilitating a confidential attorney-client relationship and, therefore, must result in a waiver of the privilege.” Profit Management Development, Inc. v. Jacobson, Brandvik & Anderson, Ltd., 309 Ill.App.3d 289, 721 N.E. 2d 826, 835, 242 Ill.Dec. 547 (2d Dist. 1999). Waiver of the attorney-client privilege can be either express or implied. The attorney-client privilege may be impliedly waived when the client asserts claims or defenses that put his or her communications with the legal advisor at issue in the litigation. Lama v. Preskill, 353 Ill.App.3d 300, 818 N.E.2d 443, 448, 288 Ill.Dec. 755 (2d Dist. 2004). In other words, an implied waiver occurs “where a party voluntarily injects either a factual or legal issue into the case, the truthful resolution of which requires an examination of the confidential communications.” Id.
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§7.15
When a party asserts, as an essential element of his or her defense, reliance on the advice of counsel, the party has waived the attorney-client privilege with respect to all communications whether written or oral, to or from counsel concerning the transactions for which counsel’s advice was sought. Painter v. Marshall Field & Co., 80 F.R.D. 718, 721 (N.D.Ill. 1978). However, the mere filing of a lawsuit will not waive the attorney-client privilege unless the lawsuit is based on the privileged communications and those communications are placed at issue. Clark v. City of Munster, 115 F.R.D. 609 (N.D.Ind. 1987). 9. [7.15] Subject-Matter Waiver The doctrine of subject-matter waiver is well established under Illinois law, which holds that, when a client voluntarily testifies and waives the attorney-client privilege, the waiver “extends no further than the subject-matter concerning which testimony has been given by the client.” People v. Gerold, 265 Ill 448, 107 N.E. 165, 178 (1914). As one court explained: Although voluntary disclosure of confidential information does not effectively waive an attorney-client privilege as to all other non-disclosed communications that may have taken place . . . where a client reveals portions of her conversation with her 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. [Citation omitted.] In re Grand Jury January 246, 272 Ill.App.3d 991, 651 N.E.2d 696, 700, 209 Ill.Dec. 518 (1st Dist. 1995). The doctrine of subject-matter waiver serves to prevent “partial or selective disclosure of favorable material while sequestering the unfavorable.” Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶39, 981 N.E.2d 345, 367 Ill.Dec. 20. A party should not be allowed to assert the attorney-client privilege “to prevent an inquiry by an opposing party where the professional advice, itself, is tendered as a defense or explanation for disputed conduct.” 2012 IL 113107 at ¶40, quoting Zirn v. VLI Corp., 621 A.2d 773, 781 – 782 (Del. 1993). In Center Partners, supra, the Illinois Supreme Court addressed whether the subject-matter waiver doctrine applies when attorney-client communications are disclosed outside of litigation. Plaintiffs sought to compel production of documents that defendants and their counsel shared during business negotiations. The Supreme Court disagreed, finding “limiting subject matter waiver to the context of judicial disclosures to be sound policy.” 2012 IL 113107 at ¶60. The court explained that allowing subject-matter waiver to be implied in business negotiations “would leave attorneys out of commercial negotiations for fear that their inclusion would later force wholesale disclosure of confidential information.” Id., quoting In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 24 (1st Cir. 2003). Effective January 1, 2013, the Illinois Supreme Court adopted Ill.R.Evid. 502, which provides: The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or workproduct protection.
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§7.16
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(a) Disclosure Made in an Illinois Proceeding or to an Illinois Office or Agency; Scope of a Waiver. When the disclosure is made in an Illinois proceeding or to an Illinois office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in any proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. By limiting application of Rule 502 to disclosures “made in an Illinois proceeding,” the rule is aligned with the Illinois Supreme Court’s holding in Center Partners in applying solely to judicial proceedings, as opposed to nonjudicial proceedings. That conclusion is supported not only by the text of the rule, but also by the commentary to Fed.R.Evid. 502, on which the Illinois rule is based. The comments state that subject-matter waiver is “limited to situations in which a party intentionally put protected information in the litigation in a selective, misleading and unfair manner.” Advisory Committee Notes, Explanatory Note (Revised 11/28/2007), Fed.R.Evid. 502(a). See Gino L. DiVito et al., New Limits on Subject Matter Waiver of Attorney-Client Privilege, 101 Ill.B.J. 348 (July 2013). 10. [7.16] Crime-Fraud Exception Another exception, known as the “crime-fraud exception,” applies when the client seeks or obtains the advice of the attorney in furtherance of criminal or fraudulent activity. The attorneyclient privilege does not apply because the client did not seek advice from the attorney in his or her professional capacity. In re Marriage of Decker, 153 Ill.2d 298, 606 N.E.2d 1094, 1101, 180 Ill.Dec. 17 (1992). 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). To invoke the crime-fraud exception, the party seeking disclosure must establish that the client knew or should have known that the intended conduct was unlawful. 606 N.E.2d at 1102. See Sound Video Unlimited, Inc. v. Video Shack Inc., 661 F.Supp. 1482, 1486 (N.D.Ill. 1987); RPC 1.6. “Good-faith consultations with attorneys by clients who are uncertain about the legal implications of a proposed course of action are entitled to the protection of the privilege, even if
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that action should later be held improper.” Decker, supra, 606 N.E.2d at 1102, quoting Radiac Abrasives, Inc. v. Diamond Technology, Inc., 177 Ill.App.3d 628, 532 N.E.2d 428, 432, 126 Ill.Dec. 743 (2d Dist. 1988). As the Illinois Supreme Court explained, disclosure of otherwise privileged attorney-client communications under the crime-fraud exception “cannot be based solely on a charge of illegality unsupported by any evidence.” People v. Radojcic, 2013 IL 114197, ¶44, 998 N.E.2d 1212, 376 Ill.Dec. 279. Rather, “[t]o drive the privilege away, there must be something to give colour to the charge.”. . . Specifically, the proponent of the crime-fraud exception must present evidence from which a “prudent person” would have a “reasonable basis to suspect” (1) “the perpetration or attempted perpetration of a crime or fraud, and” (2) “that the communications were in furtherance thereof.” Id., quoting Decker, supra, 606 N.E.2d at 1105. The focus of the crime-fraud exception is on the intent of the client, not the legitimacy of the services provided by the attorney. An attorney may be completely innocent of wrongdoing, yet the privilege will give way if the client sought the attorney’s assistance for illegal ends. Radojcic, supra, 2013 IL 114197 at ¶49. The procedure for determining whether the crime-fraud exception avoids the attorney-client privilege was outlined in United States v. Zolin, 491 U.S. 554, 105 L.Ed.2d 469, 109 S.Ct. 2619 (1989), and in Decker, supra. Both courts determined that the opposing party must make an initial showing of a “ ‘factual basis adequate to support a good faith belief by a reasonable person’. . . that in camera review of the materials may reveal evidence to establish the claim that the crimefraud exception applies.” [Citation omitted.] Zolin, supra, 109 S.Ct. at 2631, quoting Caldwell v. District Court in & for City & County of Denver, State of Colorado, 644 P.2d 26, 33 (Colo. 1982). See Decker, supra, 606 N.E.2d at 1106 – 1107. Once this threshold has been met, the trial court then has the discretion to make an in camera review of the material. In exercising its discretion, the court should consider the volume of material to be reviewed, the importance of the information to the case, and the likelihood that review of the material will support the crime-fraud exception. Zolin, supra, 109 S.Ct. at 2631; Decker, supra, 606 N.E.2d at 1108. When possible, the court should have another trial judge review the material in camera to avoid the problems caused by the potential of reviewing material that, in fact, may be privileged and then ruling on issues affected by the privileged information. Zolin, supra; Decker, supra. The in camera questioning of the attorney should be as narrow as possible. Zolin, supra; Decker, supra. 11. [7.17] Waiver when Attorney’s Advice Is at Issue in Litigation The attorney-client privilege may be impliedly waived when the client asserts claims or defenses that put his or her communications with the legal advisor at issue in the litigation. Lama v. Preskill, 353 Ill.App.3d 300, 818 N.E.2d 443, 448 – 449 (2d Dist. 2004). This type of waiver, referred to as an “at-issue waiver,” applies when clients sue their attorneys for malpractice, or lawyers sue their clients for fees.
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§7.18
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Advice is not in issue merely because it is relevant, and does not necessarily become in issue merely because the attorney’s advice might affect the client’s state of mind in a relevant manner. The advice of counsel is placed in issue where the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney client communication. Rhone-Poulenc Rorer Inc. v. Home Indemnity Co., 32 F.3d 851, 863 (3d Cir. 1994), cited with approval in In re Estate of Wright, 377 Ill.App.3d 800, 881 N.E.2d 362, 367, 317 Ill.Dec. 194 (2d Dist. 2007). In Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178, 579 N.E.2d 322, 331, 161 Ill.Dec. 774 (1991), the Illinois Supreme Court addressed the at-issue exception, noting that it permits discovery of work product when the sought-after material is either the basis of the lawsuit or the defense thereof. The court noted that the at-issue exception “wholly comports with our commitment to full and fair disclosure and furtherance of the truthseeking process.” Id. 12. [7.18] Choice of Law The issue of choice of law arises only when there is an actual conflict of law among various states with an interest in a particular action. Allianz Insurance Co. v. Guidant Corp., 373 Ill.App.3d 652, 869 N.E.2d 1042, 1049, 312 Ill.Dec. 51 (2d Dist. 2007); Bridgeview Health Care Center, Ltd. v. State Farm Fire & Casualty Co., 2014 IL 116389, ¶25 (2014) (“We adhere to settled law: a choice-of-law determination is required only when the moving party has established an actual conflict between state laws.”). When such a conflict exists, the issue is resolved by reference to the RESTATEMENT (SECOND) OF CONFLICT OF LAWS §139 (1971). Id.; Allianz, supra, 869 N.E.2d at 1056. RESTATEMENT §139 provides: (1) Evidence that is not privileged under the local law of the state which has the most significant relationship with the communication will be admitted, even though it would be privileged under the local law of the forum, unless the admission of such evidence would be contrary to the strong public policy of the forum. (2) Evidence that is privileged under the local law of the state which has the most significant relationship with the communication but which is not privileged under the local law of the forum will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect. RESTATEMENT §139, cmt. e, notes that “the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing” is usually the state with the most significant relationship. See also Allianz Insurance, supra, 869 N.E.2d at 1057. The determination of whether a “special reason” exists to exclude evidence is made by consideration of the following factors: (a) the number and nature of the contacts that the state of
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the forum has with the parties and with the transaction involved; (b) the relative materiality of the evidence that is sought to be excluded; (c) the kind of privilege involved; and (d) fairness to the parties. RESTATEMENT §139, cmt. d.
VI. [7.19] WORK-PRODUCT PRIVILEGE The work-product doctrine derives from the seminal opinion in Hickman v. Taylor, 329 U.S. 495, 91 L.Ed. 451, 67 S.Ct. 385, 393 (1947), in which the Court rejected “an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties.” The Court explained that, in performing his or her various duties, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. . . . Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. 67 S.Ct. at 393 – 394. Fed.R.Civ.P. 26(b)(3) at least partially codifies the work-product doctrine, protecting against disclosure tangible things that are prepared in anticipation of litigation by another party unless that party “has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed.R.Civ.P. 26(b)(3)(A)(ii). Even when this showing is made, the court must protect from disclosure the “mental impressions, conclusions, opinions, or legal theories” of a party’s attorney concerning the litigation. Fed.R.Civ.P. 26(b)(3)(A), 26(b)(3)(B). A substantial need exists when the material sought to be discovered is essential to a claim made or “[w]here the benefit to the resolution of the suit outweighs the potential injury to the party from whom discovery is sought.” Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577, 582 (7th Cir. 1981). However, the U.S. Supreme Court has held that a strong showing of necessity and unavailability must be made before documents revealing an attorney’s mental process are discoverable. Upjohn Co. v. United States, 449 U.S. 383, 66 L.Ed.2d 584, 101 S.Ct. 677, 687 (1981).
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§7.19
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S.Ct. Rule 201(b)(2) governs the scope of discovery of work-product materials, providing in pertinent 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. The work-product doctrine provides a broader protection than the attorney-client privilege. It is designed to protect the right of an attorney to prepare his or her case thoroughly and to preclude 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), citing Hickman v. Taylor, 329 U.S. 495, 91 L.Ed. 451, 67 S.Ct. 385 (1947). Illinois takes a narrow approach to the discovery of attorney work product. Ordinary work product (any relevant material generated in preparation for trial that does not disclose “conceptual data”) is freely discoverable. Opinion or “core” work product (materials generated in preparation for litigation that reveal the mental impressions, opinions, or trial strategy of an attorney) is subject to discovery upon a showing of impossibility of securing similar information from other sources. Waste Management, supra, 579 N.E.2d at 329. As pointed out in Allianz Insurance Co. v. Guidant Corp., 373 Ill.App.3d 652, 869 N.E.2d 1042, 1053, 312 Ill.Dec. 51 (2d Dist. 2007), almost every foreign jurisdiction that has addressed Waste Management has “assailed the decision as unsound and improperly reasoned.” The work-product privilege covers only those memoranda, reports, or documents that reflect the employment of the attorney’s legal expertise and those that reveal the shaping process by which the attorney has arranged the available evidence for use at trial, as dictated by the attorney’s training and experience. The privilege includes trial briefs, documents revealing a particular marshaling of evidence for presentation at trial, and an attorney’s memoranda of impressions of prospective witnesses but excludes verbatim statements of witnesses. Monier v. Chamberlain, 35 Ill.2d 351, 221 N.E.2d 410, 416 (1966). The privilege also includes an attorney’s notes and memoranda of oral conversations with witnesses or employees unless those notes are the only source of factual information available. Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill.2d 103, 432 N.E.2d 250, 253, 59 Ill.Dec. 666 (1982). However, reports from employees of a corporation analyzing factual material that do not reveal the attorney’s thought process are not considered work product. 432 N.E.2d at 254. Memoranda written to a file by counsel or an agent of counsel are also work product if they are prepared in anticipation of litigation. However, memos to the file that merely establish a record of conversations or conduct are not protected because they do not meet any of the elements of work product — they do not reflect strategies or theories for litigation. Instead, such memos to the file merely reflect factual information concerning the situations that gave rise to the litigation. Sneider v. Kimberly-Clark Corp., 91 F.R.D. 1, 6 (N.D.Ill. 1980), citing Mervin v. Federal Trade Commission, 591 F.2d 821, 826 (D.C.Cir. 1978).
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Materials otherwise protected under the work-product doctrine are discoverable upon a showing of impossibility of securing similar information from other sources. Western States Insurance Co. v. O’Hara, 357 Ill.App.3d 509, 828 N.E.2d 842, 849, 293 Ill.Dec. 532 (4th Dist. 2005). Like the attorney-client privilege, the work-product protection may be waived as to a communication placed “at issue” in the dispute by a party who is the holder of the privilege. Fischel & Kahn, Ltd., 189 Ill.2d 579, 727 N.E.2d 240, 243 – 244, 244 Ill.Dec. 941 (2000); Shapo v. Tires ’N Tracks, Inc., 336 Ill.App.3d 387, 782 N.E.2d 813, 819 – 820, 270 Ill.Dec. 254 (1st Dist. 2002). The work-product rule does not protect material and relevant evidentiary facts from the truth-seeking processes of discovery. 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). Individual documents that by themselves would not be subject to the work-product privilege may become privileged because of the way they are selected and compiled. Counsel’s selection and compilation of certain documents out of thousands in preparation for pretrial discovery causes the documents to fall under the work-product doctrine because this process reflects the attorney’s mental impressions and legal theories of the case. Sporck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985). However, Sporck appears to be a narrow exception to the general rule that documents received by an attorney from clients — documents that would not have been privileged if they had remained in the clients’ hands — are not protected merely because the attorney possesses them. See Gould Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676, 680 (2d Cir. 1987) (cautioning that application of Sporck “depends upon the existence of a real, rather than speculative, concern that [counsel’s thought processes] would be exposed”). Conflicting positions appear to exist in the Northern District of Illinois concerning whether the work-product privilege belongs solely to the attorney or to both the attorney and the client. The purpose of providing the work-product privilege to the client is to protect his or her rightful interest by preventing disclosures about the case. Likewise, the purpose of providing the workproduct privilege to the attorney is to insulate from disclosure the attorney’s work, particularly mental impressions, conclusions, opinions, and legal theories. In re Special September 1978 Grand Jury (II), 640 F.2d 49, 63 (7th Cir. 1980). Therefore, unlike the attorney-client privilege, which belongs only to the client, the work-product privilege may be claimed by either the client or the attorney. Clark v. City of Munster, 115 F.R.D. 609, 614 (N.D.Ind. 1987); September 1978 Grand Jury (II), supra; Ohio-Sealy Mattress Manufacturing Co. v. Sealey, Inc., 90 F.R.D. 45, 47 (N.D.Ill. 1981). But see Donovan v. Fitzsimmons, 90 F.R.D. 583, 587 (N.D.Ill. 1981) (workproduct privilege belongs at least in part, if not fully, to attorney); Panter v. Marshall Field & Co., 80 F.R.D. 718, 725 (N.D.Ill. 1978) (work-product privilege belongs only to attorney), citing Hercules Inc. v. Exxon Corp., 434 F.Supp. 136, 156 (D.Del. 1977). Inadvertent production of documents does not waive the work-product privilege. In re Sealed Case, 120 F.R.D. 66, aff’d sub nom. Medcom Holding Co. v. Baxter Travenol Laboratories, Inc., 689 F.Supp. 841 (N.D.Ill. 1988). However, as discussed in §§7.6 – 7.8 above with respect to the attorney-client privilege, in determining whether an inadvertent disclosure of material constitutes a waiver, the court applies a balancing test, looking at the reasonableness of the efforts to prevent disclosure, the extent of the disclosure, and the fairness of allowing or preventing disclosure. Dalen v. Ozite Corp., 230 Ill.App.3d 18, 594 N.E.2d 1365, 171 Ill.Dec. 845 (2d Dist. 1992). The
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work-product privilege extends beyond termination of the action for which the material was prepared. People v. Cortez, 115 Cal.App.3d 395, 171 Cal.Rptr. 418 (1981); Annot., 27 A.L.R. 4th 568 (1984). Illinois S.Ct. Rule 201(b)(3) governs discovery of facts or opinions from consultants: A consultant is a person who has been retained or specially employed in anticipation of litigation or preparation for trial but who is not to be called at trial. The identity, opinions, and work product of a consultant are discoverable only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means. The Committee Comments note that discovery of consultants will be proper “only in extraordinary cases.” Committee Comments, Rule 201(b) (June 1, 1995). In Shields, supra, the defendant claimed that any surveillance tapes or films prepared either by Burlington or by any videographer working for Burlington constituted work product prepared by or for a party in preparation for trial and thus were privileged from discovery. The appellate court disagreed, finding that the work-product rule does not protect material and relevant evidentiary facts from the truth-seeking processes of discovery. 818 N.E.2d at 853. The court noted that the weight of authority favors discoverability of surveillance information, “principally because such information is probative of a critical issue in a personal injury case — the physical condition of the plaintiff.” 818 N.E.2d at 853, quoting Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154, 159 (N.D. Iowa 1994). The Shields court concluded that the surveillance videotapes taken by a consultant were not privileged but the identity of the videographer was privileged under Rule 201(b)(3) unless exceptional circumstances were shown. 818 N.E.2d at 856.
VII. MARITAL COMMUNICATIONS PRIVILEGE A. [7.20] Nature of Marital Communications Privilege At common law, neither husband nor wife could testify as to any fact or transaction, the knowledge of which was obtained by means of the marriage relation, either during the marriage or after its termination by death or divorce. Heineman v. Hermann, 385 Ill. 191, 52 N.E.2d 263, 266 (1943). Husband and wife were viewed as incompetent to testify for or against each other. The disqualification “rested in part upon their interest, in part upon the common-law notion of unity of husband and wife, and in part upon a desire to promote domestic tranquility. 1 Blackstone, p. 443; II Wigmore, Evidence, sec. 601, 2d Ed.” People v. Palumbo, 5 Ill.2d 409, 125 N.E.2d 518, 520 (1955). In Funk v. United States, 290 U.S. 371, 78 L.Ed. 369, 54 S.Ct. 212, 214 (1933), the United States Supreme Court appraised the basis for the common-law rule of disqualification of husbands and wives and concluded that the disqualification could not “be any longer justified, if it ever was justified, on any ground of public policy.” In 1935, the Illinois legislature amended the Evidence Act and the Criminal Code, eliminating the common-law disqualification of
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husband and wife and leaving only the common-law privilege relating to communications between them. Palumbo, supra, 125 N.E.2d at 521. The purpose of the privilege is to promote marital harmony, mutual understanding, trust, and stability by encouraging full disclosure and free and confidential communications between spouses. People v. Trzeciak, 2013 IL 114491, ¶41, 5 N.E.3d 141, 378 Ill.Dec. 761. B. [7.21] Marital Communications Privilege in Civil Cases In civil actions, spouses may testify for or against each other unless the action falls within one of the enumerated exceptions. Section 8-801 of the Code of Civil Procedure, 735 ILCS 5/1-101, et seq., 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. The marital privilege is intended to preserve the privacy of communications between spouses. Puterbaugh v. Puterbaugh, 327 Ill.App.3d 792, 764 N.E.2d 582, 585, 261 Ill.Dec. 967 (3d Dist. 2002). The privilege has not been extended to testimony regarding conversations and transactions occurring prior to marriage. Id. C. Marital Communications Privilege in Criminal Cases 1. [7.22] In General Both husband and wife may refuse to disclose communications made between them or knowledge acquired as a result of their marital relationship as long as the relationship was valid and the communication or knowledge was confidential. 735 ILCS 5/8-801; People v. Palumbo, 5 Ill.2d 409, 125 N.E.2d 518, 521 (1955). “The argument traditionally advanced in support of the marital communications privilege is that the privilege is needed to encourage marital confidences, which confidences in turn promote harmony between husband and wife.” People v. Trzeciak, 2013 IL 114491, ¶41, 5 N.E.3d 141, 378 Ill.Dec. 761, quoting Charles T. McCormick, MCCORMICK ON EVIDENCE §86, p. 340 (John W. Strong ed., 5th ed. 1999). Under the Code of Criminal Procedure of 1963, 725 ILCS 5/1-101, et seq., husband and wife may testify for or against the other in criminal cases. However, neither spouse 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 cases in which either is charged with an offense against the person or property of the other.” 725 ILCS 5/115-16. A spouse may also testify in cases “of spouse abandonment, when the interests of their child or children or of any child or children in either spouse’s care, custody, or control are directly involved, when either is charged under
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Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 or the Criminal Code of 2012 and the victim is a minor under 18 years of age in either spouse’s care, custody, or control at the time of the offense, or as to matters in which either has acted as agent of the other.” Id. The marital privilege remains in effect as to confidential communications even though the parties are separated, as long as they are not divorced. People v. Dubanowski, 75 Ill.App.3d 809, 394 N.E.2d 605, 606, 31 Ill.Dec. 403 (1st Dist. 1979). 2. [7.23] Scope and Application Although the term “communication” found in 725 ILCS 5/115-16 implies the idea of speech, “[c]ertain acts . . . may be deemed a communication, such as a nod of the head or wave of the hand.” People v. Trzeciak, 2013 IL 114491, ¶43, 5 N.E.3d 141, 378 Ill.Dec. 761. It may be in the form of a writing or knowledge acquired through observation of the conduct or behavior of the other spouse as long as knowledge of it was obtained by virtue of the existence of the marital relationship. People v. Foskey, 136 Ill.2d 66, 554 N.E.2d 192, 143 Ill.Dec. 257 (1990). To fall within the purview of the statute, the nonverbal conduct must be clearly intended as a substitute for, or in lieu of, an oral communication. Id. As the Illinois Supreme Court explained: Thus, two elements must be met before a communication between spouses falls within the privilege. First, the communication must be an utterance or other expression intended to convey a message. Second, the message must be intended by the communicating spouse to be confidential in that it was conveyed in reliance on the confidence of the marital relationship. Trzeciak, supra, 2013 IL 114491 at ¶44. See Heineman v. Hermann, 385 Ill. 191, 52 N.E.2d 263, 266 (1943); People v. Rogers, 348 Ill. 322, 180 N.E. 856, 857 (1932). For example, the privilege extends to knowledge of the spouse’s physical or mental condition acquired through observation or experience in the privacy of the marital relationship. See Schreffler v. Chase, 245 Ill. 395, 92 N.E. 272, 274 (1910). However, “[a] spouse’s testimony as to physical acts of cruelty or abuse by the other spouse is admissible on the ground that no confidential communication is involved, or that the information was not gained as a result of the marital relation.” Trzeciak, supra, 2013 IL 114491 at ¶47, quoting 81 AM.JUR.2d Witnesses §§287, 313 (2004). A presumption exists that private communications between spouses are intended to be confidential and are, therefore, privileged. People v. Palumbo, 5 Ill.2d 409, 125 N.E.2d 518, 521 (1955). However, our courts have rejected the notion that §115-16 applies to any conversation or communication. Rather, the statutory privilege applies only to communications that are intended to be confidential. Trzeciak, supra, 2013 IL 114491 at ¶41. When “it appears from the nature or circumstances under which the communication was made that confidentiality was not intended, the communication is not privileged.” 2013 IL 114491 at ¶42. Interpersonal communications with one’s spouse are presumed to be confidential unless the circumstances of the communication indicate otherwise. People v. Layne, 286 Ill.App.3d 981, 677 N.E.2d 469, 475, 222 Ill.Dec. 266 (5th Dist. 1997). Communications between spouses made in
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the presence of a third party, including the spouses’ children who are old enough to understand the conversation, are not privileged because they were not made in confidence. Wolfle v. United States, 291 U.S. 7, 78 L.Ed. 617, 54 S.Ct. 279 (1934); People v. Sanders, 99 Ill.2d 262, 457 N.E.2d 1241, 1244, 75 Ill.Dec. 682 (1983). Similarly, communication to a spouse of information intended to be transmitted to a third person, such as statements of income or expenses needed to prepare a tax return, are not privileged. Layne, supra, 677 N.E.2d at 476. The Illinois Supreme Court explained that not every conversation between husband and wife will be found to be confidential. Rather, the privilege applies only to those private exchanges that were “prompted by the affection, confidence and loyalty engendered by such relationship.” Trzeciak, supra, 2013 IL 114491 at ¶50, quoting People v. D’Amato, 105 Misc.2d 1048, 430 N.Y.S.2d 521, 522 – 523 (N.Y.Sup. 1980). “Conversely, if what is said or done by either has no relation to their mutual trust and confidence as husband and wife, then the reason for secrecy ceases.” Id. (internal quotations omitted). Accordingly, a defendant’s threats to kill his wife and whatever she loved most if she disclosed facts about a murder he committed did not “enhance the mutual trust and confidence of the marital relationship that the privilege is intended to protect.” Trzeciak, supra, 2013 IL 114491 at ¶50, quoting Rubalcada v. State of Indiana, 731 N.E.2d 1015, 1022 (Ind. 2000). The Supreme Court concluded that the determination of whether a particular communication is privileged “depends on the nature and form of the communication and the circumstances immediately surrounding its making.” Trzeciak, supra, 2013 IL 114491 at ¶51. The court held that this constituted a preliminary question of fact to be decided by the trial court. Id. D. [7.24] Federal Common-Law Marital Privileges Federal common law recognizes two marital privileges: the marital testimonial privilege and the marital communications privilege. United States v. Westmoreland, 312 F.3d 302, 307 n.3 (7th Cir. 2002). Although the underlying reason for both privileges is to preserve the family, their purposes differ: The testimonial privilege looks forward with reference to the particular marriage at hand: the privilege is meant to protect against the impact of the testimony on the marriage. The marital communications privilege in a sense, is broader and more abstract: it exists to ensure that spouses generally, prior to any involvement in criminal activity or a trial, feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law. United States v. Byrd, 750 F.2d 585, 590 (7th Cir. 1984). 1. [7.25] Testimonial Privilege The marital testimonial privilege “protects an individual from being forced to testify against his or her spouse.” United States v. Darif, 446 F.3d 701, 707 (7th Cir. 2006). “Only the testifying spouse can assert the privilege, and the privilege may be waived.” Id. The testimonial privilege may not be asserted after a marriage is terminated because there is no longer any reason to protect that particular marriage. United States v. Byrd, 750 F.2d
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585, 591 (7th Cir. 1984). Moreover, there appears to be general agreement among the courts that the testimonial privilege may not be asserted when the marriage between the defendant and the testifying spouse is moribund, though legally still valid. Id.; United States v. Cameron, 556 F.2d 752, 756 (5th Cir. 1977). The testimonial privilege “applies to all testimony against a defendant-spouse, including testimony on nonconfidential matters and matters which occurred prior to the marriage.” Byrd, supra, 750 F.2d at 590, citing 2 Jack B. Weinstein, WEINSTEIN’S EVIDENCE: COMMENTARY ON RULES OF EVIDENCE FOR THE UNITED STATES COURTS AND MAGISTRATES §505-23 (1984). In Trammel v. United States, 445 U.S. 40, 63 L.Ed.2d 186, 100 S.Ct. 906 (1980), the Supreme Court noted that all privileges are at odds with the principle that the public has a right to everyone’s evidence, but the costs associated with the spousal testimonial privilege were more extreme, stating that “[n]o other testimonial privilege sweeps so broadly.” 100 S.Ct. at 913. Its protection is not limited to confidential communications; rather it permits an accused to exclude all adverse spousal testimony. As Jeremy Bentham observed more than a century and a half ago, such a privilege goes far beyond making “every man’s house his castle,” and permits a person to convert his house into “a den of thieves.” 5 Rationale of Judicial Evidence 340 (1827). It “secures, to every man, one safe and unquestionable and every ready accomplice for every imaginable crime.” Id., at 338. Id. The issue in Trammel was whether the privilege could be invoked by the accused so as to exclude the voluntary testimony of his wife. The Court concluded that when one spouse is willing to testify against the other in a criminal proceeding, “there is probably little in the way of marital harmony for the privilege to preserve.” Id. Accordingly, only the testifying spouse could claim the privilege. 100 S.Ct. at 914. 2. [7.26] Communications Privilege In contrast to the testimonial privilege, the communications privilege, “assertable by the defendant himself, applies only to communications made in confidence between the spouses during a valid marriage.” United States v. Byrd, 750 F.2d 585, 590 (7th Cir. 1984). The marital communications privilege applies only to communications made in confidence between the spouses during a valid marriage and may be asserted by either spouse. United States v. Darif, 446 F.3d 701, 705 (7th Cir. 2006). The marital communications privilege “exists to ensure that spouses generally, prior to any involvement in criminal activity or a trial, feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law.” United States v. Westmoreland, 312 F.3d 302, 307 n.3 (7th Cir. 2002), quoting Byrd, supra. In a criminal case, United States v. Keck, 773 F.2d 759 (7th Cir. 1985), married defendants both claimed that the district court erred in admitting recordings of conversations between them, claiming that the recordings were privileged communications between spouses. The Seventh Circuit noted that two privileges could theoretically apply — the adverse testimony privilege, under which a witness-spouse can refuse to testify against his or her spouse (Byrd, supra, 750 F.2d at 590), and the confidential communications privilege, under which a defendant-spouse can
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prevent disclosure of confidential communications that occurred during a valid marriage. The court concluded that neither privilege applies when both parties are “joint participants” in a crime. 773 F.2d at 767, quoting Byrd, supra, 750 F.2d at 594. As one court noted, “[W]e do not value criminal collusion between spouses, so any confidential statements concerning a joint criminal enterprise are not protected by the privilege.” United States v. Short, 4 F.3d 475, 478 (7th Cir. 1993). 3. [7.27] Duration The U.S. Supreme Court held that “while divorce removes the bar of incompetency, it does not terminate the privilege for confidential marital communications.” Pereira v. United States, 347 U.S. 1, 98 L.Ed. 435, 74 S.Ct. 358, 361 (1953). This survival of the communications privilege “is premised on the assumption that confidences will not be sufficiently encouraged unless the spouses are assured that their statements will never be subjected to forced disclosure.” United States v. Byrd, 750 F.2d 585, 591 (7th Cir. 1984), quoting Anne N. DePrez, Note, Pillow Talk, Grimgribbers and Connubial Bliss: The Marital Communications Privilege, 56 Ind.L.J. 121, 131, nn.66 – 68 (1980). The Byrd court noted that it could find no federal cases addressing the question of whether the privilege applies to marital communications made while the parties have been living in longterm separation. The court noted: Professor Wigmore argues that the application of the privilege in such a situation “cannot be conceded,” 8 WIGMORE, EVIDENCE §2335 (1961), and counsels that it “would sometimes be pedantically unjust to recognize no exceptions” to the logic of the communications privilege. Id. at §2341(3). 750 F.2d at 591. The court concluded that the privilege did not apply to marital communications made during a long-term separation. See United States v. Roberson, 859 F.2d 1376, 1380 – 1382 (9th Cir. 1988) (analysis). The Seventh Circuit held that the privilege extends only to communications made during the marital relationship and not to communications between permanently separated spouses. Byrd, supra, 750 F.2d at 593 (“We, too, therefore, strictly interpret that portion of the privilege’s requirement and hold that only communications that take place during a valid marriage between couples still cohabiting pursuant to that marriage are protected by the privilege.”).
VIII. MEDICAL AND PSYCHIATRIC PRIVILEGES A. Physician-Patient Privilege 1. [7.28] Illinois Statute Illinois’ physician-patient privilege is governed by §8-802 of the Code of Civil Procedure, which provides that no physician “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
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professionally to serve the patient.” 735 ILCS 5/8-802. The statute lists 12 exceptions to that general rule. A physician may disclose information (1) in trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide, (2) in actions, civil or criminal, against the physician for malpractice, (3) 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, or as authorized by Section 8-2001.5 [of the Code of Civil Procedure], (4) 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 wherein the patient’s physical or mental condition is an issue, (5) upon an issue as to the validity of a document as a will of the patient, (6) in any criminal action where the charge is either first degree murder by abortion, attempted abortion or abortion, (7) in actions, civil or criminal, arising from the filing of a report in compliance with the Abused and Neglected Child Reporting Act, (8) to any department, agency, institution or facility which has custody of the patient pursuant to State statute or any court order of commitment, (9) in prosecutions where written results of blood alcohol tests are admissible pursuant to Section 11-501.4 of the Illinois Vehicle Code, (10) in prosecutions where written results of blood alcohol tests are admissible under Section 5-11a of the Boat Registration and Safety Act, (11) in criminal actions arising from the filing of a report of suspected terrorist offense in compliance with Section 29D-10(p)(7) of the Criminal Code of 2012, or (12) upon the issuance of a subpoena pursuant to Section 38 of the Medical Practice Act of 1987; the issuance of a subpoena pursuant to Section 25.1 of the Illinois Dental Practice Act; the issuance of a subpoena pursuant to Section 22 of the Nursing Home Administrators Licensing and Disciplinary Act; or the issuance of a subpoena pursuant to Section 25 of the Workers’ Compensation Act. In the event of a conflict between the application of this Section and the Mental Health and Developmental Disabilities Confidentiality Act to a specific situation, the provisions of the Mental Health and Developmental Disabilities Confidentiality Act shall control. Id. 2. [7.29] Nature and Scope of Physician-Patient Privilege A patient has a limited privilege to prevent a physician from disclosing any information he or she acquired in attending the patient in a professional character necessary to enable the physician to serve the patient professionally. Tomczak v. Ingalls Memorial Hospital, 359 Ill.App.3d 448, 834 N.E.2d 549, 553, 295 Ill. Dec. 968 (1st Dist. 2005). The physician-patient privilege is designed to help patients feel comfortable when making disclosures to their physicians and to protect their privacy from invasion. Id. As the privilege applies only to information necessary for diagnosis and treatment, it does not prevent disclosure of the patient’s identity as long as information regarding the patient’s physical or mental status is not included. Geisberger v. Willuhn, 72 Ill.App.3d 435, 390 N.E.2d 945, 948,
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28 Ill.Dec. 586 (2d Dist. 1979). The physician-patient privilege covers not only physicians but also support personnel, such as nurses, paramedics, and other hospital staff members who treat or care for patients. People v. Kucharski, 346 Ill.App.3d 655, 806 N.E.2d 683, 688, 282 Ill.Dec. 386 (2d Dist. 2004); People v. Wilber, 279 Ill.App.3d 462, 664 N.E.2d 711, 715, 216 Ill.Dec. 74 (4th Dist. 1996). The privilege applies to any information learned by medical personnel in the course of treating a patient. Thus, when medical personnel discovered drugs in a patient’s clothing while undressing him for the purpose of giving medical treatment and the patient’s physician considered the discovered drugs in diagnosing and treating the patient, the drugs were privileged and could not be introduced by the state in furtherance of its prosecution of the patient for drug possession. People v. Maltbia, 273 Ill.App.3d 622, 653 N.E.2d 402, 406, 210 Ill.Dec. 497 (3d Dist. 1995). Although the physician-patient privilege does afford some level of protection to the medical records of nonparty patients, this protection is not absolute. Tomczak, supra. In a decision relying on Tomczak, the court held the applicability of a privilege to a nonparty patient “depends on whether the nonparty patient information . . . is general information or is treatment information that is 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). The name and address of a patient, for example, would not be privileged “because that information is not a necessary part of a physician’s duty to treat, prescribe or act for the patient.” 850 N.E.2d at 258, citing Geisberger, supra, 390 N.E.2d at 947. 3. [7.30] Exceptions and Waiver The scope of the physician-patient privilege is severely limited due to the sheer number of statutory exceptions. The privilege may be waived by the patient or, in the case of death or disability, by his or her personal representative or other person authorized to sue for personal injury or by the beneficiary of an insurance policy on his or her life, health, or physical condition. 735 ILCS 5/8-802. The privilege does not exist a. in actions against the physician for malpractice; b. in suits in which the patient’s physical or mental condition is an issue brought by or against the patient, a personal representative, a beneficiary under a policy of insurance, or the executor or administrator of his or her estate; c. with respect to an issue as to the validity of a document such as a will of the patient; and d. in actions arising from the filing of a report required by statute concerning neglect or abuse of children. Id. Another exception to the physician-patient privilege exists in reckless homicide cases and in other prosecutions in which written results of blood alcohol tests are admissible pursuant to §11-501.4 of the Illinois Vehicle Code, 625 ILCS 5/1-100, et seq. People v. Hart, 194 Ill.App.3d
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997, 552 N.E.2d 1, 141 Ill.Dec. 864 (2d Dist. 1990). However, it is improper for a nurse to disclose results of a blood alcohol test orally when, absent this information, there is no probable cause to arrest the defendant. Village of Arlington Heights v. Bartelt, 211 Ill.App.3d 747, 570 N.E.2d 668, 671, 156 Ill.Dec. 192 (1st Dist. 1991), superseded by statute as stated in People v. Ernst, 311 Ill.App.3d 672, 725 N.E.2d 59, 244 Ill.Dec. 264 (2d Dist. 2000). A party who calls his or her own doctor to testify as to privileged matters waives the privilege and may not exclude the testimony of other examining doctors on the same issue. People v. Givans, 83 Ill.App.2d 423, 228 N.E.2d 123, 126 (1st Dist. 1967). However, a party who seeks recovery for pain and suffering, alleging that he or she is “sick, sore, lame and disordered and permanently injured” does not thereby put his or her “mental condition” into issue as an element of the claim or waive the physician-patient privilege. Webb v. Quincy City Lines, Inc., 73 Ill.App.2d 405, 219 N.E.2d 165, 166 (4th Dist. 1966). See Tylitzki v. Triple X Service, Inc., 126 Ill.App.2d 144, 261 N.E.2d 533, 535 – 536 (1st Dist. 1970). A plaintiff waived the physicianpatient privilege by filing a medical malpractice action on behalf of her infant son who died shortly after birth. As the mother placed the health of the son in issue by filing the suit, the medical records of her prenatal care during her pregnancy were discoverable by the defendant. El-Amin v. Dempsey, 329 Ill.App.3d 800, 768 N.E.2d 344, 352, 263 Ill.Dec. 584 (1st Dist. 2002). 4. [7.31] Application to Medical Malpractice Actions in Light of Petrillo The Petrillo doctrine forbids ex parte communications between defense counsel and a plaintiff’s treating physician because these conferences jeopardize the sanctity of the physicianpatient relationship and are prohibited as against public policy. Petrillo v. Syntex Laboratories, Inc., 148 Ill.App.3d 581, 499 N.E.2d 952, 102 Ill.Dec. 172 (1st Dist. 1986); Hall v. Flowers, 343 Ill.App.3d 462, 798 N.E.2d 757, 760, 278 Ill.Dec. 373 (4th Dist. 2003). The Petrillo doctrine is based on recognition that “society possesses an established and beneficial interest in the sanctity of the physician-patient relationship.” Petrillo, supra, 499 N.E.2d at 957. The court explained: Because public policy strongly favors both the confidential and fiduciary nature of the physician-patient relationship, it is thus axiomatic that conduct which threatens the sanctity of that relationship runs afoul of public policy. That being so, we believe, for the reasons set forth below, that ex parte conferences between defense counsel and a plaintiff’s treating physician jeopardize the sanctity of the physicianpatient relationship and, therefore, are prohibited as against public policy. Our determination that public policy prohibits such conferences is bolstered evermore by the fact that no appreciative gain (regarding the evidence to be obtained) can be had through such meetings. Id. The Petrillo doctrine encompasses a. letters, accompanied by a subpoena, sent to custodians of medical records requesting the plaintiff’s medical records; b. letters requesting a treating physician to sign an affidavit;
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c. a discussion in defense counsel’s office prior to taking the treating physician’s deposition; d. telephone calls to the treating doctor to verify his or her availability for trial; e. an interview taken after the physician’s deposition to prepare the physician for trial; f.
discussions between a treating physician and an attorney who subsequently represented the defendant physician; and
g. an interview conducted with the defendant’s risk manager. See Lester A. Bonaguro and Michelle M. Jochner, The Petrillo Doctrine: A Review and Update, 83 Ill.B.J. 16 (1995). Based upon the reality that physicians do not act alone in the discharge of professional, fiduciary duties to a patient, the appellate court has extended Petrillo to a broad range of medical and health care providers and related personnel. The courts have determined that these health care professionals also stand in a fiduciary relationship to plaintiff, and, as a result, an extension of Petrillo maintains the sanctity of patient confidences. It would appear, therefore, that the scope of the Petrillo rule is as broad as the privilege it seeks to protect. 83 Ill.B.J. at 18. Section 6.17 of the Hospital Licensing Act, 210 ILCS 85/1, et seq., creates an exception to the Petrillo doctrine. The statute provides: No member of a hospital’s medical staff . . . shall disclose the nature or details of services provided to patients, except that the information may be disclosed to . . . those parties responsible for peer review, utilization review or quality assurance, risk management, or defense of claims brought against the hospital arising out of the care. 210 ILCS 85/6.17(d). The statute also provides that a hospital’s medical staff members and their agents may communicate, at any time and in any fashion, with legal counsel for the hospital concerning the patient medical record privacy and retention requirements of this Section and any care or treatment they provided or assisted in providing to any patient within the scope of their employment or affiliation with the hospital. 210 ILCS 85/6.17(e). B. Therapist-Patient Privilege 1. [7.32] In General Section 3 of the Mental Health and Developmental Disabilities Confidentiality Act (MHDDCA), 740 ILCS 110/1, et seq., provides that all records and communications “shall be confidential and shall not be disclosed except as provided in this Act.” 740 ILCS 110/3(a). Under
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the Act, “confidential communication” or “communication” means any communication made by a recipient or other person to a therapist during or in connection with providing mental health or developmental disability services to that recipient. 740 ILCS 110/2. Communication includes information indicating that a person is a recipient, and communications to, or in the presence of, other persons during or in connection with the provision of mental health services. Id. “Record” means any record kept by a therapist or by an agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided. . . . “Record” does not include the therapist’s personal notes, if such notes are kept in the therapist’s sole possession for his [or her] own personal use and are not disclosed to any other person, except the therapist’s supervisor, consulting therapist or attorney. If, at any time, such notes are disclosed, they shall be considered part of the recipient’s record for purposes of the Act. Id. “Personal notes” are defined as (i) information disclosed to the therapist in confidence by other persons on condition that such information would never be disclosed to the recipient or other persons; (ii) information disclosed to the therapist by the recipient which would be injurious to the recipient’s relationships to other persons, and (iii) the therapist’s speculations, impressions, hunches, and reminders. Id. The MHDDCA also provides that “[s]uch personal notes are the work product and personal property of the therapist and shall not be subject to discovery in any judicial, administrative or legislative proceeding or any proceeding preliminary thereto.” 740 ILCS 110/3(b). The Illinois Supreme Court noted the MHDDCA represents 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). “That a high value is placed on privacy is evidenced by the fact that the privilege afforded a recipient of mental health treatment continues even after the recipient’s death.” Norskog, supra, 755 N.E.2d at 10. Accordingly, “anyone seeking the nonconsensual release of mental health information faces a formidable challenge and must show that disclosure is authorized by the Act.” Id. As the Illinois Supreme Court has explained, the purpose of the MHDDCA “is to preserve the confidentiality of the records and communications of persons who are receiving or who have received mental-health services.” Novak v. Rathnam, 106 Ill.2d 478, 478 N.E.2d 1334, 1336, 88 Ill.Dec. 608 (1985). The MHDDCA “was intended to include all those persons entering into a therapeutic relationship with clients.” Martino v. Family Service Agency of Adams County, 112 Ill.App.3d 593, 445 N.E.2d 6, 11, 67 Ill.Dec. 714 (4th Dist. 1982).
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The MHDDCA “only applies to situations in which the patient is seeking treatment for a mental health condition.” Johnston v. Weil, 241 Ill.2d 169, 946 N.E.2d 329, 339, 349 Ill.Dec. 135 (2011), quoting House v. SwedishAmerican Hospital, 206 Ill.App.3d 437, 564 N.E.2d 922, 928, 151 Ill.Dec. 467 (2d Dist. 1990). When disclosure is permitted, the legislature crafted narrow exceptions to limit the disclosure to specific purposes. Norskog, supra, 755 N.E.2d at 9. The Act provides that only information relevant to the purpose for which disclosure is sought may be disclosed. “Blanket consent to the disclosure of unspecified information shall not be valid [and consent] may be revoked in writing at any time.” 740 ILCS 110/5(c). Revocation of consent has no effect on prior disclosures. Id. Information disclosed under the Act may not be redisclosed unless the person who consented to the initial disclosure specifically consents to such redisclosure. 740 ILCS 110/5(d). The MHDDCA defines a “therapist” as a “psychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services” and specifically includes other persons who hold themselves out as therapists if the recipient reasonably believes the person is permitted to do so. 740 ILCS 110/2. See Johnson v. Lincoln Christian College, 150 Ill.App.3d 733, 501 N.E.2d 1380, 103 Ill.Dec. 842 (4th Dist. 1986). Violation of the therapist-patient privilege may give rise to an action for damages. The MHDDCA provides that “[a]ny person aggrieved by a violation of this Act may sue for damages, an injunction, or other appropriate relief” and may recover reasonable attorneys’ fees and costs. 740 ILCS 110/15. “Any person who knowingly and willfully violates any provision of this Act is guilty of a Class A misdemeanor.” 740 ILCS 110/16. Communications between a therapist and a minor under the age of 12 are not privileged as to the minor’s parents, and the statute provides that the parent of a child under 12, or both the parent and the child if the child is between 12 and 18, may consent to disclosure. 740 ILCS 110/4, 110/5(a); Dymek v. Nyquist, 128 Ill.App.3d 859, 469 N.E.2d 659, 83 Ill.Dec. 52 (1st Dist. 1984). In the case of a divorce, both the custodial and noncustodial parents have the right of access to the psychiatrist’s records absent a court order limiting that right. Id. In addition to the therapist-patient privilege under the MHDDCA, a statutory privilege has been created for the testimony of clinical psychologists (225 ILCS 15/5), social workers (225 ILCS 20/16), marriage and family therapists (225 ILCS 55/70), and licensed professional counselors and licensed clinical professional counselors (225 ILCS 107/75). The provisions of all of these statutes are similar, and all are subject to the MHDDCA. The United States Supreme Court recognized a psychotherapist privilege under the federal common law in Jaffee v. Redmond, 518 U.S. 1, 135 L.Ed.2d 337, 116 S.Ct. 1923 (1996), finding that, like the spousal and attorney-client privileges, the psychotherapist-patient privilege is “rooted in the imperative need for confidence and trust.” 116 S.Ct. at 1928. The “mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.” Id. The Court noted that all 50 states and the District of Columbia have enacted some form of psychotherapist privilege. Denial of the federal privilege would frustrate state legislation designed to protect these confidential communications. 116 S.Ct. at 1930.
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Jaffe extended the psychotherapist privilege to encompass licensed social workers, as well as psychiatrists and psychologists. The Court also rejected the notion that the privilege is contingent on a trial judge’s subsequent evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure. The Court explained that “[a]n uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” 116 S.Ct. at 1932, quoting Upjohn Co. v. United States, 449 U.S. 383, 66 L.Ed.2d 584, 101 S.Ct. 677, 684 (1981). 2. [7.33] Exceptions and Waiver In civil, criminal, administrative, or legislative hearings, either the therapist or the recipient may refuse to disclose or prevent disclosure of a recipient’s records or communications, but the privilege is waived in proceedings in which the recipient introduces his or her mental condition or some aspect of the mental health services received as an element of his or her claim or defense. Reda v. Advocate Health Care, 199 Ill.2d 47, 765 N.E.2d 1002, 1008, 262 Ill.Dec. 394 (2002). However, this waiver is limited to the extent that a court, after an in camera examination, finds that a. the proffered evidence is “relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible”; b. “other satisfactory evidence is demonstrably unsatisfactory” to establish the facts in question; and c. “disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient.” 740 ILCS 110/10(a)(1). See Laurent v. Brelji, 74 Ill.App.3d 214, 392 N.E.2d 929, 932, 30 Ill.Dec. 164 (4th Dist. 1979). Even when these findings have been made in civil proceedings, only “the fact of treatment, the cost of services and the ultimate diagnosis” shall be considered relevant unless the party seeking disclosure establishes a compelling need for production of further information. 740 ILCS 110/10(a)(1). If a party, as the recipient of mental health services, has introduced his or her mental condition, the court must conduct an in camera examination of the evidence to determine if it is, inter alia, relevant, probative, and not unduly prejudicial. Reda, supra. The Mental Health and Developmental Disabilities Confidentiality Act provides for numerous exceptions, including: (i) in accordance with the provisions of the Abused and Neglected Child Reporting Act, subsection (u) of Section 5 of the Children and Family Services Act, or Section 7.4 of the Child Care Act of 1969; (ii) when, and to the extent, a therapist, in his or her sole discretion, determines that disclosure is necessary to initiate or continue civil commitment or involuntary
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treatment proceedings under the laws of this State or to otherwise protect the recipient or other person against a clear, imminent risk of serious physical or mental injury or disease or death being inflicted upon the recipient or by the recipient on himself or another; (iii) when, and to the extent disclosure is, in the sole discretion of the therapist, necessary to the provision of emergency medical care to a recipient who is unable to assert or waive his or her rights hereunder; (iv) when disclosure is necessary to collect sums or receive third party payment representing charges for mental health or developmental disabilities services provided by a therapist or agency to a recipient under Chapter V of the Mental Health and Developmental Disabilities Code or to transfer debts under the Uncollected State Claims Act; however, disclosure shall be limited to information needed to pursue collection, and the information so disclosed shall not be used for any other purposes nor shall it be redisclosed except in connection with collection activities; (v) when requested by a family member, the Department of Human Services may assist in the location of the interment site of a deceased recipient who is interred in a cemetery established under Section 26 of the Mental Health and Developmental Disabilities Administrative Act; (vi) in judicial proceedings under Article VIII of Chapter III and Article V of Chapter IV of the Mental Health and Developmental Disabilities Code and proceedings and investigations preliminary thereto, to the State’s Attorney for the county or residence of a person who is the subject of such proceedings, or in which the person is found, or in which the facility is located, to the attorney representing the recipient in the judicial proceedings, to any person or agency providing mental health services that are the subject of the proceedings and to that person’s or agency’s attorney, to any court personnel, including but not limited to judges and circuit court clerks, and to a guardian ad litem if one has been appointed by the court. Information disclosed under this subsection shall not be utilized for any other purpose nor be redisclosed except in connection with the proceedings or investigations. Copies of any records provided to counsel for a petitioner shall be deleted or destroyed at the end of the proceedings and counsel for petitioner shall certify to the court in writing that he or she has done so. At the request of a recipient or his or her counsel, the court shall issue a protective order insuring the confidentiality of any records or communications provided to counsel for a petitioner; (vii) when and to the extent disclosure is necessary to comply with the requirements of the Census Bureau in taking the federal Decennial Census; (viii) when, and to the extent, in the therapist’s sole discretion, disclosure is necessary to warn or protect a specific individual against whom a recipient has
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made a specific threat of violence where there exists a therapist-recipient relationship or a special recipient-individual relationship; (ix) in accordance with the Sex Offender Registration Act; (x) in accordance with the Rights of Crime Victims and Witnesses Act; (xi) in accordance with Section 6 of the Abused and Neglected Long Term Care Facility Residents Reporting Act; (xii) in accordance with Section 55 of the Abuse of Adults with Disabilities Intervention Act; and (xiii) to an HIE [health information exchange] specifically allowed under this Act for HIE purposes and in accordance with any applicable requirements of the HIE. 740 ILCS 110/11. The waiver of the therapist-patient privilege in one proceeding constitutes a waiver of the privilege for subsequent proceedings. Novak v. Rathnam, 106 Ill.2d 478, 478 N.E.2d 1334, 88 Ill.Dec. 608 (1985). Thus, when a criminal defendant raises the insanity defense, thus waiving the privilege for the case, the privilege will also be held to be waived in a subsequent wrongful-death action against the patient and the psychiatrist. Id. Mere allegations of pain and suffering as an element of a claim are not sufficient to put a claimant’s mental condition at issue. Reda, supra, 765 N.E.2d at 1008. In an action against the therapist filed by the recipient or any beneficiaries that relates to the therapist’s services, the therapist may disclose records and communications with the recipient as necessary to prepare a defense. 740 ILCS 110/10(a)(3). Records or communications between a therapist and a recipient made during a court-ordered examination may be disclosed in a proceeding in which the recipient is a party, provided that the recipient is advised in advance that the communications will not be considered confidential. 740 ILCS 110/10(a)(4). In Johnston v. Weil, 241 Ill.2d 169, 946 N.E.2d 329, 332, 349 Ill.Dec. 135 (2011), the Illinois Supreme Court addressed the following certified question: Whether evaluations, communications, reports and information obtained pursuant to section . . . 604(b) of the Illinois Marriage and Dissolution of Marriage [Act] . . . are confidential under the Mental Health and Developmental Disabilities Confidentiality Act . . . where the 604(b) professional personnel to advise the court is a psychiatrist or other mental health professional. In this case, Johnston had two ex-husbands, McCann and Weil. McCann filed a post-dissolution petition to modify a joint parenting agreement. The court ordered Johnston, McCann, and Weil to
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participate in a psychiatric evaluation in order to assist the court in resolving the custody issue of McCann’s son. The psychiatrist, Dr. Amabile, completed her evaluation and sent a report to the circuit court. No one sought a protective order regarding the information provided to Dr. Amabile or her report. In a separate action, Weil filed a motion seeking temporary custody of his daughter and sought leave to subpoena Dr. Amabile. Johnston claimed that Dr. Amabile’s report was privileged under the MHDDCA. The circuit court held that the McCann proceeding was privileged under the MHDDCA and not discoverable in the Weil proceeding. Johnston filed a complaint naming McCann, Weil, and their attorneys, among others, claiming that the McCann defendants disclosed confidential information to the Weil defendants and seeking $200,000 in damages. The Supreme Court concluded that §605(b) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., allows the court to order an investigation and report concerning custodial arrangements, and, in preparing that report, the investigator may consult with and obtain information from medical, psychiatric, or other expert persons who have served the child in the past, without obtaining consent of the parent or the child’s custodian. The court noted that child custody proceedings “epitomize the need for maximum disclosure of information in the goal of reaching justice.” 946 N.E.2d at 337. The court further explained: The paramount consideration and guiding principle in determining child custody is the best interests of the child. . . . Therefore, the circuit court exercises broad discretion in admitting relevant evidence that may assist the court in arriving at a custody determination . . . and the court should hear and weigh all available relevant evidence. . . . [IMDMA §604(b)] “allows the court to seek the advice of professional personnel in order to supplement the evidence provided by the parties.” [Citations omitted.] Id., quoting Historical and Practice Notes, S.H.A. (1980), c. 40, ¶604. The Supreme Court agreed with the appellate court that IMDMA §604(b) provides no limitations or exceptions when the §604(b) professional is a mental health professional. Although IMDMA §605 provides defendants with a remedy, the court concluded that §604(b) confined disclosure of Dr. Amabile’s report to the court, counsel, and the parties in the McCann post-dissolution proceeding. The Illinois Supreme Court held that, although it had repeatedly recognized the importance of keeping mental health records confidential, the psychiatrist’s report submitted under IMDMA §604 was not privileged under the MHDDCA because Dr. Amabile and the plaintiffs were not engaged in a therapeutic relationship. 946 N.E.2d at 341. C. [7.34] Psychologist-Patient Privilege A psychologist is prohibited by statute from disclosing information acquired from patients that is necessary to render professional services except
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1. in trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide; 2. in proceedings to determine mental competency; 3. in actions against the psychologist for malpractice; 4. with the expressed consent of the client; and 5. in cases involving the validity of a will of the client. 225 ILCS 15/5. In case of a conflict between the psychologist’s privilege and the Mental Health and Developmental Disabilities Confidentiality Act (therapist’s privilege), the provisions of the MHDDCA shall control. Id. D. [7.35] Rape Crisis Personnel’s Privilege Code of Civil Procedure §8-802.1 provides that statements made by victims of criminal sexual behavior to a “rape crisis counselor” in the course of providing information, counseling, or advocacy shall be privileged. The expressed purpose of the statute is as follows: Because of the fear and stigma that often results from those crimes, many victims hesitate to seek help even where it is available at no cost to them. As a result 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. 735 ILCS 5/8-802.1(a). Under the statute, “victim” is defined to include a person who seeks information, counseling, or advocacy services as the result of several specified criminal sexual acts or attempts to commit those acts. 735 ILCS 5/8-802.1(b)(3). A “rape crisis counselor” is defined to include a psychologist, social worker, employee, or trained volunteer employed by a rape crisis organization. 735 ILCS 5/8-802.1(b)(2). A “rape crisis organization” is defined as any organization “the major purpose of which is providing information, counseling, and psychological support to victims of” sex-related crimes. 735 ILCS 5/8-802.1(b)(1). “Confidential communication” is defined to mean “any communication between a victim and a rape crisis counselor in the course of providing information, counseling, and advocacy. The term includes all records kept by the counselor or by the organization in the course of providing services to an alleged victim.” 735 ILCS 5/8-802.1(b)(4). The only exception to the privilege occurs when the victim of the crime consents to the disclosure of the communication. 735 ILCS 5/8-802.1(c). The presence of third persons who further express the interests of the victim does not waive the privilege. 735 ILCS 5/8-802.1(c)(1). Disclosure of such a communication by a rape crisis counselor is a Class C misdemeanor. 735 ILCS 5/8-802.1(f). The privilege for statements to a rape crisis counselor has been held to be absolute so that even in camera inspection to determine whether the rape victim’s statements to the counselor might impeach the trial testimony against the rapist is prohibited. People v. Foggy, 121 Ill.2d 337,
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521 N.E.2d 86, 87, 118 Ill.Dec. 18 (1988). The court’s opinion in Foggy indicated, however, that the privilege might yield to the defendant’s confrontation rights in cases in which a defendant alleged specific facts in the counselor’s records providing impeachment material unavailable from other sources. E. [7.36] Medical Studies Statute The Illinois medical studies statute, 735 ILCS 5/8-2101, et seq., establishes as privileged all information, reports, or statements 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. Such reports, records, notes, or memoranda are not admissible as evidence, nor are they discoverable “in any action of any kind in any court.” 735 ILCS 5/8-2102. Moreover, the disclosure of such information, regardless of the propriety of the disclosure, does not result in a waiver of the privilege or “have any effect upon its confidentiality, nondiscoverability, or nonadmissibility.” Id. Improper disclosure of such information constitutes a Class A misdemeanor. 735 ILCS 5/8-2105. The purpose of the statute is to “ensure the effectiveness of professional self-evaluation, by members of the medical profession, in the interest of improving the quality of health care.” Jenkins v. Wu, 102 Ill.2d 468, 468 N.E.2d 1162, 1168, 82 Ill.Dec. 382 (1984). Indeed, without a statutorily mandated peer review privilege, “[i]t is unlikely that physicians would evaluate their colleagues.” Giangiulio v. Ingalls Memorial Hospital, 365 Ill.App.3d 823, 850 N.E.2d 249, 260, 302 Ill.Dec. 812 (1st Dist. 2006). The function of these committees is to oversee the medical care and treatment provided by the hospital staff and to make sure that steps are quickly taken to correct any deficiencies which may occur. By providing that information obtained by such committees would be kept confidential, the Illinois legislature intended to encourage individuals with relevant information to speak freely so that the committees could more easily perform their function. Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1062 (7th Cir. 1981). Although the statute protects against disclosure of “the mechanisms of the peer review process, including information gathering and deliberations leading to the ultimate decision rendered by a peer-review committee,” it affords no protection for information generated prior to the peer review process or after the peer review process ends. Pietro v. Marriott Senior Living Services, Inc., 348 Ill.App.3d 541, 810 N.E.2d 217, 224, 284 Ill.Dec. 564 (1st Dist. 2004), citing Webb v. Mount Sinai Hospital & Medical Center of Chicago, Inc., 347 Ill.App.3d 817, 807 N.E.2d 1026, 1033, 283 Ill.Dec. 185 (1st Dist. 2004). Statements made during the course of reviewing a physician’s staff privileges are absolutely privileged and may not be used in an action for defamation or tortious interference with business relations based on those statements, even by the physician subject to the review. Green v. Silver Cross Hospital, 606 F.Supp. 87 (N.D.Ill. 1984). Moreover, although the data used during the proceeding must be made available to the subject physician for judicial review of the hospital’s
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decision, judicial review is limited to whether the hospital complied with its own bylaws. Knapp v. Palos Community Hospital, 176 Ill.App.3d 1012, 531 N.E.2d 989, 996, 126 Ill.Dec. 362 (1st Dist. 1988). In the hospital context, the privilege applies only to the actions of hospital committees, not to the actions of the hospital administration or individual department chairs. Roach v. Springfield Clinic, 157 Ill.2d 29, 623 N.E.2d 246, 251, 191 Ill.Dec. 1 (1993). A letter written by a physician to a hospital credentialing committee, and generated at the request of the committee, evaluating the competence of a physician and used in determining whether to grant permanent staff privileges falls within the privilege. Stricklin v. Becan, 293 Ill.App.3d 886, 689 N.E.2d 328, 228 Ill.Dec. 456 (4th Dist. 1997). However, to fall under the privilege, the material must be generated as part of the peer review process itself and may not consist of material generated in advance of the committee’s work and then presented to the committee. Id.; May v. Wood River Township Hospital, 257 Ill.App.3d 969, 629 N.E.2d 170, 174, 195 Ill.Dec. 862 (5th Dist. 1994). Thus, a physician’s application for staff privileges is not covered under the statute. Id. On the other hand, annual reviews prepared by department chairs for a hospital’s credentialing committee evaluating the performance of a physician do fall under the privilege. Toth v. Jensen, 272 Ill.App.3d 382, 649 N.E.2d 484, 487, 208 Ill.Dec. 428 (1st Dist. 1995). While the statute applies to all testimony taken during a hospital’s peer review proceedings, it has been held not to apply to actions taken as a result of these proceedings or restrictions on a surgeon’s privileges as a result of peer review proceedings. Richter v. Diamond, 108 Ill.2d 265, 483 N.E.2d 1256, 1258, 91 Ill.Dec. 621 (1985); Gleason v. St. Elizabeth Medical Center, 135 Ill.App.3d 92, 481 N.E.2d 780, 89 Ill.Dec. 937 (5th Dist. 1985). Thus, records not privileged are those regarding the nature and extent of the physician’s surgical privileges or any restrictions on those privileges as well as transcripts and applications for appointment to a medical staff and for specific privileges. Willing v. St. Joseph Hospital, 176 Ill.App.3d 737, 531 N.E.2d 824, 827, 126 Ill.Dec. 197 (1st Dist. 1988); Payne v. Nicholas, 156 Ill.App.3d 768, 509 N.E.2d 547, 554, 108 Ill.Dec. 851 (1st Dist. 1987). Similarly, a hospital’s policies establishing criteria to be met for each category of privileges granted to a physician are not privileged. Willing, supra, 531 N.E.2d at 828. Interrogatories that requested a defendant hospital to state what steps were to be taken to supervise a physician whose privileges had initially been restricted, as well as asking to discover the evidence considered by the committee in reappointing the physician, were improper. Pritchard v. SwedishAmerican Hospital, 191 Ill.App.3d 388, 547 N.E.2d 1279, 1286, 138 Ill.Dec. 658 (2d Dist. 1989). Documents relating to the investigation by an infection control committee of a hospital to determine the source of a patient’s infection are privileged even from the patient whose infection is being investigated. Sakosko v. Memorial Hospital, 167 Ill.App.3d 842, 522 N.E.2d 273, 276, 118 Ill.Dec. 818 (5th Dist. 1988). Documents that reflect investigations and deliberations of committees that monitor infection control are non-discoverable. Ekstrom v. Temple, 197 Ill.App.3d 120, 553 N.E.2d 424, 142 Ill.Dec. 910 (2d Dist. 1990). Thus, written guidelines of an infection control committee as well as
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minutes of the committee meeting fall within the language of the statute. However, the identities of the members of the committee are not afforded protection from disclosure. 553 N.E.2d at 428. In addition, since doctors’ applications for privileges are antecedent to the peer review process, they are not protected. 553 N.E.2d at 429 – 430. The statute was held to be inapplicable to incident reports involving slip-and-fall accidents within a hospital although an affidavit by a hospital risk manager stated that the report related to internal quality control but said nothing about patient care. Dunkin v. Silver Cross Hospital, 215 Ill.App.3d 65, 573 N.E.2d 848, 850, 158 Ill.Dec. 35 (3d Dist. 1991). Similarly, polygraph tests a hospital administered to nurses were not privileged. Marsh v. Lake Forest Hospital, 166 Ill.App.3d 70, 519 N.E.2d 504, 116 Ill.Dec. 612 (2d Dist.), appeal denied, 121 Ill.2d 571 (1988). The privilege is not waived by the disclosure of privileged material to another person even if the disclosure was improper. 735 ILCS 5/8-2102. Consequently, the disclosure of information from a privileged hospital committee to a risk management committee charged with evaluating the hospital’s liability will not result in a waiver of the privilege. Sakosko, supra. The federal courts have refused to apply this privilege to federal question cases. Shadur, supra. F. [7.37] HIV-Related Information Practitioners should keep in mind that several sections of the AIDS Confidentiality Act have been amended effective January 1, 2015, by P.A. 98-1046 and expand the Act’s protection. This section reflects the Act as amended. Section 9 of the AIDS Confidentiality Act, 410 ILCS 305/1, et seq., provides that no one “may disclose or be compelled to disclose HIV-related information.” 410 ILCS 305/9. The Act contains a number of exceptions. Obviously, the HIV results may be disclosed to the subject of the test or the subject’s legally authorized representative. Results may also be disclosed to the test subject’s spouse if (1) the test result is positive, (2) the result has been confirmed, and (3) the physician first tried unsuccessfully to persuade the patient to notify the spouse or, after a reasonable amount of time after the patient agreed to make the notification, the physician has reason to believe that the patient has not done so. 410 ILCS 305/9(a). Test results may also be disclosed to an authorized agent or employee of a healthcare provider if the provider itself is authorized to obtain the test results, the agent or employee provides patient care or handles or processes specimens of body fluids or tissues, and the agent or employee has a need to know such information. 410 ILCS 305/9(c). Results may also be disclosed to healthcare professionals and any firefighter, EMT, or law enforcement officer involved in an accidental, “direct skin or mucous membrane contact with the blood or bodily fluids of an individual which is of a nature that may transmit HIV, as determined by a physician in his medical judgment.” 410 ILCS 305/9(h)(i). In the case of a confirmed positive test result of a minor under 18 years of age, the healthcare professional who ordered the test shall make a reasonable effort to notify the minor’s parent or
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legal guardian if, in his or her professional judgment, notification would be in the best interests of the child and the healthcare professional has first sought unsuccessfully to persuade the minor to notify the parent or legal guardian, or after a reasonable time, the healthcare professional has reason to believe that the minor has not made the notification. 410 ILCS 305/9(k). Section 9(d) of the AIDS Confidentiality Act provides that AIDS and HIV test results and HIV-related information collected by the Illinois Department of Public Health shall be afforded the same protections from disclosure afforded under the medical studies statute of the Code of Civil Procedure. The purpose of the AIDS Confidentiality Act is “to control the spread of the HIV virus by encouraging the public to submit to voluntary testing through an assurance of confidentiality.” See Glasco v. Marony, 347 Ill.App.3d 1069, 808 N.E.2d 1107, 1112, 283 Ill.Dec. 819 (5th Dist. 2004), quoting In re Application of Multimedia KSDK, Inc., 221 Ill.App.3d 199, 581 N.E.2d 911, 913, 163 Ill.Dec. 757 (5th Dist. 1991). The AIDS Confidentiality Act provides certain limited exceptions for disclosure, but it does not include a provision requiring disclosure in civil actions when the test subject’s physical condition is at issue. Nevertheless, the common law of Illinois has generally provided for a waiver of such information when a party’s health is at issue. Since the AIDS Confidentiality Act does not specifically abrogate this common-law rule, one court has held that the Act is subject to a common-law exception when a party places his or her physical health in issue. In re Marriage of Bonneau, 294 Ill.App.3d 720, 691 N.E.2d 123, 129 – 130, 229 Ill.Dec. 187 (2d Dist. 1998). However, the waiver is limited to situations in which the party “specifically or affirmatively” places his or her mental or physical health in issue in the pleadings. 691 N.E.2d at 130.
IX. [7.38] ACCOUNTANT’S PRIVILEGE Section 27 of the Illinois Public Accounting Act, 225 ILCS 450/0.01, et seq., 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. This Section shall not apply to any investigation or hearing undertaken pursuant to this Act. 225 ILCS 450/27. The Illinois Supreme Court focused its attention on the statutory language specifying that evidence and information obtained by an accountant in his or her “confidential capacity” are protected. In re October 1985 Grand Jury No. 746, 124 Ill.2d 466, 530 N.E.2d 453, 455, 125 Ill.Dec. 295 (1988). Like the attorney-client privilege, the legislature intended that the accountant’s privilege extends accordingly “only to information or evidence received by an accountant in confidence from the client.” 530 N.E.2d at 456 – 457. The court noted that tax clients understand that information they provide to their accountant may be, at the accountant’s discretion, disclosed to a third party, such as state and federal taxing
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authorities. Thus, information a client provides to an accountant to prepare a client’s tax returns, and the accountant’s work papers in preparing the returns, are not confidential. 530 N.E.2d at 458. Accordingly, the information and papers fall outside the purview of the §27 privilege and are not protected from disclosure. Id. The privilege may be invoked only by the accountant, not the client. United States v. Balistrieri, 403 F.2d 472 (7th Cir. 1968), vacated on other grounds, 89 S.Ct. 2032 (1969); Western Employers Insurance Co. v. Merit Insurance Co., 492 F.Supp. 53, 55 (N.D.Ill. 1979). Conversely, information provided to an accountant for purposes of an audit that is not to be filed with any third party or governmental agency is privileged. FMC Corp. v. Liberty Mutual Insurance Co., 236 Ill.App.3d 355, 603 N.E.2d 716, 719, 177 Ill.Dec. 646 (1st Dist. 1992). Federal law does not recognize the accountant’s privilege, so in an action involving federal claims or defenses, the privilege will not be applied even if it is also relevant to state law claims. In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000); Federal Deposit Insurance Corp. v. Mercantile National Bank of Chicago, 84 F.R.D. 345, 349 (N.D.Ill. 1979). “Accounting advice, even if given by an attorney, is not privileged.” Valero Energy Corp. v. United States, 569 F.3d 626, 630 (7th Cir. 2009). Although federal law does not recognize an accountant’s privilege, Congress passed legislation in 1998 authorizing a limited shield on confidentiality between a federally authorized tax practitioner and his or her client. The statute provides: (a) Uniform application to taxpayer communications with federally authorized practitioners. — (1) General rule. — With respect to tax advice, the same common law protections of confidentiality which apply to a communication between a taxpayer and an attorney shall also apply to a communication between a taxpayer and any federally authorized tax practitioner to the extent the communication would be considered a privileged communication if it were between a taxpayer and an attorney. (2) Limitations. — Paragraph (1) may only be asserted in — (A) any noncriminal tax matter before the Internal Revenue Service; and (B) any noncriminal tax proceeding in Federal court brought by or against the United States. 26 U.S.C. §7525. Basically, the statute extends the attorney-client privilege to communications between a federally authorized tax practitioner and his or her client. Noting that “the line between a lawyer’s work and that of an accountant can be blurry,” the Seventh Circuit in Valero, supra, established some guidelines for distinguishing between accounting advice, which is not privileged, and tax preparation advice, which is:
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For starters, the preparation of tax returns is an accounting, not a legal service, therefore information transmitted so that it might be used on a tax return is not privileged. . . . On the other side of the spectrum, communications about legal questions raised in litigation (or in anticipation of litigation) are privileged. . . . Of course, there is a grey area between these two extremes, but to the extent documents are used for both preparing tax returns and litigation, they are not protected from the government’s grasp. . . . This circumscribed reading of the tax practitionerclient privilege is in sync with our general take on privileges, which we construe narrowly because they are in derogation of the search for truth. [Citations omitted.] 569 F.3d at 630. The Seventh Circuit employed a deferential standard of review, noting that it would reverse only if the district court’s ruling was clearly erroneous. Id. The Valero court noted that no general privilege exists between a client and a federal tax practitioner. “[I]t’s not enough that the communications raised federal tax topics.” 569 F.3d at 631. Worksheets containing financial data and estimates of tax liability, discussions of deductions, and calculations of gains and losses were found to be “the type of information generally gathered to facilitate the filing of a tax return, and such accounting advice is not covered by the privilege.” Id. The court noted that other documents raised issues about Valero’s inventory methods and compensation packages and an analysis of their effect on tax computations. The court noted that, although the documents contained some legal analysis, “it comes part and parcel with accounting advice, and is therefore also open to the government.” Id. Significantly, the accountant’s privilege does not apply to communications in connection with the promotion of direct or indirect participation in a tax shelter. 26 U.S.C. §7525(b)(2).
X.
[7.39] CLERGY-PENITENT PRIVILEGE
Under Illinois law, the clergy-penitent privilege is based on 735 ILCS 5/8-803, which provides that accredited clergy of any religious denomination shall not be compelled to disclose certain communications made to them. [T]o fall under the protection of section 8-803, a communication must be 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). Any information communicated in the course of an admission or confession made for the purpose of receiving spiritual consolation or counseling is privileged, but it is not privileged if made to a clergyperson in the presence of a third person, unless that person is “indispensable” to the counseling or consoling activity of the clergyperson. Id., quoting People v. Diercks, 88 Ill.App.3d 1073, 411 N.E.2d 97, 101, 44 Ill.Dec. 191 (5th Dist. 1980).
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As long as the clergy-penitent privilege is not waived, the privilege bars not only the originally articulated information but also any reiteration or repetition in any form. The privilege does not protect any information that a religious institution acquires independently of a privileged communication, even if that information is the same as that conveyed in the confidential communication. Id. The United States Supreme Court, albeit in dicta, acknowledged the existence of a “priestpenitent” privilege in Trammel v. United States, 445 U.S. 40, 63 L.Ed.2d 186, 100 S.Ct. 906, 913 (1980), stating: The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return. See also United States v. Nixon, 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090, 3108 (1974) (“[G]enerally, an attorney or a priest may not be required to disclose what has been revealed in professional confidence.”). In the wake of the Supreme Court’s opinion in Trammel, supra, a number of federal courts have also acknowledged the clergy-penitent privilege. See, e.g., United States v. Dubé, 820 F.2d 886, 889 (7th Cir. 1987) (acknowledging existence of clergy-penitent privilege, but holding that if “one seeks out the clergy only for income tax avoidance, we see no more need for a protective privilege than if the taxpayer had consulted his butcher or barber”); United States v. Gordon, 655 F.2d 478, 486 (2d Cir. 1981) (holding that defendant’s business communications to priest he employed in nonreligious capacity were not protected by “priest-penitent privilege”); Eckmann v. Board of Education of Hawthorn School District No. 17, 106 F.R.D. 70, 72 (E.D.Mo. 1985) (observing that “ ‘priest-penitent’ privilege has clearly been recognized by federal courts” and holding that Catholic nun could invoke privilege with respect to communications made to her in her capacity as spiritual advisor). But cf. Seidman v. Fishburne-Hudgins Educational Foundation, Inc., 724 F.2d 413, 415 (4th Cir. 1984) (holding that relative could not invoke clergy-penitent privilege on decedent’s behalf and observing that privilege “has no firm foundation in common law”). Illinois authorities defining the scope of the privilege are limited. The privilege attaches to communications to traditional clergy. It also extends to communications to “lay counselors” or “nonprofessional representatives” of clergy when their assistance is indispensable to the work of a clergyperson. Diercks, supra, 411 N.E.2d at 101. The individual making the communication need not belong to the clergyperson’s church or congregation for the communication to be privileged. Snyder v. Poplett, 98 Ill.App.3d 359, 424 N.E.2d 396, 399, 53 Ill.Dec. 761 (4th Dist. 1981). The communication must have been made to the clergyperson in a professional character or as a spiritual advisor, and disclosure of the communication must be enjoined by the rules of practice of the clergyperson’s religious body before the privilege attaches. Diercks, supra. The penitent’s perception that the communication is privileged is not controlling. Both the clergyperson and the penitent have to understand that the communication originates in confidence, the clergyperson must be acting as a spiritual advisor to the penitent, and the rules of
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the clergyperson’s faith must prohibit disclosure of such confidences. People v. Bole, 223 Ill.App.3d 247, 585 N.E.2d 135, 147, 165 Ill.Dec. 739 (2d Dist. 1991). The fact that the spiritual advisor is also a psychologist and offers psychological as well as spiritual advice does not destroy the privilege. People v. Burnidge, 279 Ill.App.3d 127, 664 N.E.2d 656, 659, 216 Ill.Dec. 19 (2d Dist. 1996). The communication must not have been disclosed to a nonprivileged third party to remain privileged. Id. However, the testimony of a clergyperson describing observations made during the course of privileged communications does not waive the privilege. Snyder, supra, 424 N.E.2d at 400. The privilege belongs to both the person making the statement and the clergyperson. See Bole, supra, 585 N.E.2d at 146 – 147; Diercks, supra, 411 N.E.2d at 100. The privilege is properly asserted by the clergyperson in the first instance. People v. Pecora, 107 Ill.App.2d 283, 246 N.E.2d 865, 872 – 873 (1st Dist. 1969), cert. denied, 90 S.Ct. 1274 (1970). When the clergyperson does not object to disclosure of the communication, the person asserting the privilege has the burden to prove its existence by the rules or practices of the relevant religion. Diercks, supra. Communications to clergy were not privileged at common law. 81 AM.JUR.2d Witnesses §493, et seq. (2d ed. 2004); Annot., 93 A.L.R.5th 327 (2001). However, federal common law recognizes a priest-penitent privilege protecting confidential communications, including confessions, of a penitent seeking spiritual rehabilitation. In Dubé, supra, the court noted that the phrase “priest-penitent” may lead some to believe the privilege applies only to one specific religion. Accordingly, the court referred to the privilege as the “clergy-penitent” privilege. 820 F.2d at 889. The court noted that the Supreme Court explained in dicta that the clergy-penitent privilege is limited to private communications rooted in confidence and trust. The privilege “recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.” 820 F.2d at 889, quoting Trammel, supra, 100 S.Ct. at 913.
XI. [7.40] PRIVILEGE AGAINST SELF-INCRIMINATION In civil cases, the privilege against self-incrimination must be invoked in response to specific questions and cannot be asserted to prevent all questioning. Pennsylvania Tank Line v. Jordan, 341 Ill. 94, 173 N.E. 181, 184 (1930); People ex rel. Elkin v. Rimicci, 97 Ill.App.2d 470, 240 N.E.2d 195 (1st Dist. 1968). The privilege ordinarily must be claimed personally, but when the witness is a party or the situation otherwise demands, counsel for the witness may call the witness’s attention to the privilege or plead it in his or her behalf. People v. Myers, 35 Ill.2d 311, 220 N.E.2d 297 (1966), cert. denied, 87 S.Ct. 752 (1967). When a witness invokes the privilege, the court must uphold it unless it appears “ ‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer(s) cannot possibly have such tendency’ to incriminate.” [Emphasis in Temple, omitted in Hoffman.] Hoffman v. United States, 341 U.S. 479, 95 L.Ed. 1118, 71 S.Ct. 814, 819 (1951), quoting Temple v.
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Commonwealth, 75 Va. 892, 898 (1881). The privilege extends to any answers that would furnish a link in the chain of evidence needed to prosecute the claimant for a crime. Blau v. United States, 340 U.S. 159, 95 L.Ed. 170, 71 S.Ct. 223 (1950); United States v. DeLucia, 256 F.2d 493 (7th Cir. 1958). The privilege may not be invoked when there is no realistic possibility that the answers to questions would subject the witness to subsequent prosecution or criminal penalties. Thus, “the party must tender some credible reason why a response to a question or to discovery will ‘pose a real danger of incrimination and not a remote or speculative possibility.’ ” People ex rel. Morse v. E & B Coal Co., 261 Ill.App.3d 738, 634 N.E.2d 436, 443, 199 Ill.Dec. 597 (5th Dist. 1994), quoting Martin-Trigona v. Gouletas, 634 F.2d 354, 360 (7th Cir. 1980). “An unreasonable fear or mere reluctance to answer should not be grounds for claiming the privilege, and if sole discretion for asserting the privilege rests with the witness, there is a substantial opportunity for abuse.” In re Zisook, 88 Ill.2d 321, 430 N.E.2d 1037, 1041, 58 Ill.Dec. 786 (1981). When civil and criminal proceedings are proceeding simultaneously, the court may stay the civil action until the resolution of the criminal proceeding to protect a party from making admissions or offering proof of a crime, from being unable to defend the civil suit, from abuse of discovery in the criminal matter, and from prejudicing the criminal case. People ex rel. Hartigan v. Kafka & Sons Building & Supply Co., 252 Ill.App.3d 115, 625 N.E.2d 16, 19, 192 Ill.Dec. 56 (1st Dist. 1993). The Fifth Amendment does not prohibit an adverse inference against civil litigants who refuse to testify in response to probative evidence against them. Independent Trust Corp. v. Hurwick, 351 Ill.App.3d 941, 814 N.E.2d 895, 906, 286 Ill.Dec. 669 (1st Dist. 2004). The witness’ privilege not to give self-incriminating evidence is waived if he or she fails to claim the privilege before answering the question. People v. Cooper, 366 Ill. 113, 7 N.E.2d 882, 884 (1937); Elkin, supra. Further, when a party voluntarily testifies on his or her own behalf, the privilege is waived as to all matters that are within the scope of cross-examination. Brown v. United States, 356 U.S. 148, 2 L.Ed.2d 589, 78 S.Ct. 622 (1958). When a witness is not testifying voluntarily, any statements that would incriminate the witness operate as a waiver as to all matters that would not further incriminate the witness. Rogers v. United States, 340 U.S. 367, 95 L.Ed. 344, 71 S.Ct. 438 (1951). While normally invoked in response to questions posed in discovery or at trial, the Fifth Amendment privilege against self-incrimination is applicable at any stage of a civil proceeding in which a party’s answer could incriminate. Thus, it covers the pleadings of a party, and it is a violation of the right against self-incrimination to grant judgment on the pleadings against a defendant in a civil case who refuses to file a verified answer on the basis of the Fifth Amendment. Gabriel v. Columbia National Bank of Chicago, 228 Ill.App.3d 240, 592 N.E.2d 556, 562, 170 Ill.Dec. 120 (1st Dist. 1992). In this situation, the failure to respond to an allegation cannot be taken as an admission, and the court must require the plaintiff to prove the allegations as though the defendant had denied them. 592 N.E.2d at 561. See also National Acceptance Company of America v. Bathalter, 705 F.2d 924, 932 (7th Cir. 1983).
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XII. [7.41] TRADE SECRET PRIVILEGE Courts, at their discretion, may protect trade secrets from disclosure unless doing so would result in a miscarriage of justice by concealing fraud or other matters that have an important bearing on the issues in the case. Sandee Manufacturing Co. v. Rohm & Haas Co., 24 F.R.D. 53, 58 (N.D.Ill. 1959); Putney v. Du Bois Co., 240 Mo.App. 1075, 226 S.W.2d 737 (1950). The protection for secret processes is not absolute and may be overcome when the information is clearly relevant to a material issue in the proceeding and the prejudice of producing the material is slight. Carter Products, Inc. v. Eversharp, Inc., 360 F.2d 868, 872 (7th Cir. 1966). To invoke the privilege, the party seeking its protection must show that the information sought is confidential and that its disclosure might be harmful. Byrnes v. Jetnet Corp., 111 F.R.D. 68 (M.D.N.C. 1986). “Trade secret” has been defined by caselaw to include a “secret plan or process, tool, mechanism or compound known only to its owner” and to employees of the owner who need to know it. Schulenburg v. Signatrol, Inc., 33 Ill.2d 379, 212 N.E.2d 865, 868 (1965), cert. denied, 86 S.Ct. 1225 (1966), citing Victor Chemical Works v. Iliff, 299 Ill. 532, 132 N.E. 806, 811 (1921). Section 2(d) of the Illinois Trade Secrets Act (ITSA), 765 ILCS 1065/1, et seq., defines a “trade secret” as information, including but not limited to, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. 765 ILCS 1065/2(d). To establish a violation of the ITSA, a plaintiff must prove that the information at issue was (a) a trade secret, (b) misappropriated, and (c) used in the defendant’s business. Multiut Corp. v. Draiman, 359 Ill.App.3d 527, 834 N.E.2d 43, 49, 295 Ill.Dec. 818 (1st Dist. 2005). Although §2(d) provides the general definition of a “trade secret,” it must be defined in terms of the facts of a particular case. The factors that the court should consider are the extent to which information is known outside the employer’s business and by employees and others involved in the business, the extent of the measures taken by the employer to guard the secrecy of the information, the value of the information to the employer and competitors, the effort or money expended by the employer in developing the information, and the ease or difficulty with which the information could be properly acquired or duplicated by others. Smith Oil Corp. v. Viking Chemical Co., 127 Ill.App.3d 423, 468 N.E.2d 797, 800, 82 Ill.Dec. 250 (2d Dist. 1984).
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The trade secret privilege can be claimed by the owner of the business in which it is used and by the owner’s agents and employees. An employee has a duty to claim the privilege because of the implied obligation not to divulge or use confidential information acquired by reason of employment. By-Buk Co. v. Printed Cellophane Tape Co., 163 Cal.App.2d 157, 329 P.2d 147, 151 (1958). Although an employee is under an obligation not to divulge the trade secrets obtained in confidence from an employer, an employee can always take with him or her the general knowledge gained while working for his or her former employer. James C. Wilborn & Sons, Inc. v. Heniff, 95 Ill.App.2d 155, 237 N.E.2d 781 (1st Dist. 1968); Syntex Ophthalmics, Inc. v. Novicky, 591 F.Supp. 28, 38 (N.D.Ill. 1983), cert. granted, judgment vacated on other grounds, 105 S.Ct. 1740 (1985). [W]hile an employee, at the termination of his employment, can take with him general skills and knowledge acquired during the course of his employment, he may not take confidential particularized information disclosed to him during the time the employer-employee relationship existed which are unknown to others in the industry and which give the employer advantage over his competitors. Agency, Inc. v. Grove, 362 Ill.App.3d 206, 839 N.E.2d 606, 615, 298 Ill.Dec. 283 (2d Dist. 2005), quoting Burt Dickens & Co. v. Bodi, 144 Ill.App.3d 875, 494 N.E.2d 817, 819, 98 Ill.Dec. 695 (1st Dist. 1986). If it is determined that, because of the nature of the case, the trade secret must be disclosed, the court will take special precautions to protect the secrecy of the information. See Annot., 62 A.L.R.2d 509, 513 (1958).
XIII. [7.42] SOCIAL WORKER’S PRIVILEGE The statute creating the social worker’s privilege is codified at §16 of the Clinical Social Work and Social Work Practice Act, 225 ILCS 20/1, et seq. Under §16, a licensed social worker or clinical social worker is prohibited from disclosing information obtained from persons consulting the social worker professionally. However, the social worker may voluntarily disclose information in the following circumstances: a. in reporting to superiors; b. with the written consent of the person who provided the information or that person’s personal representative; c. when judged necessary to protect a person from imminent risk of serious mental or physical harm or to forestall a threat to public safety if the communication reveals the intended commission of a crime or harmful act; d. when the person brings public charges against the social worker;
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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 service agency and disclosure of the information is in accordance with the provisions of §8 of the Adult Protective Services Act, 320 ILCS 20/8. 225 ILCS 20/16(1).
In addition, the social worker may be compelled to testify in a judicial proceeding concerning the commission of a crime against a minor recipient of social services provided that the court determines that the interests of protecting confidentiality are outweighed by the requirements of justice or the need to protect the public safety or the minor. 225 ILCS 20/16(2). Nothing in the Clinical Social Work and Social Work Practice Act prohibits the social worker from testifying in hearings regarding adoption, child abuse, neglect, or other matters pertaining to children except as provided in the Abused and Neglected Child Reporting Act, 325 ILCS 5/1, et seq. 225 ILCS 20/16(4). The social worker may also be covered by the therapist’s privilege. See §§7.32 – 33 above; 740 ILCS 110/2. The Mental Health and Developmental Disabilities Confidentiality Act is incorporated into the Clinical Social Work and Social Work Practice Act so that all of the MHDDCA’s provisions are included. 225 ILCS 20/16(5).
XIV. [7.43] REPORTER’S PRIVILEGE In general, a news reporter may not be compelled to disclose the source of any information obtained by him or her. 735 ILCS 5/8-901; People v. Slover, 323 Ill.App.3d 620, 753 N.E.2d 554, 556 – 557, 257 Ill.Dec. 359 (4th Dist. 2001). A “reporter” is defined as “any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium.” 735 ILCS 5/8-902(a). “Source” is defined as the “person or means from or through which . . . information was obtained.” 735 ILCS 5/8-902(c). The purpose of the reporter’s privilege is “to assure reporters access to information, thereby encouraging a free press and a well-informed citizenry.” People v. Pawlaczyk, 189 Ill.2d 177, 724 N.E.2d 901, 908, 244 Ill.Dec. 13 (2000). A party seeking divestiture of the reporter’s privilege must identify, in pertinent part, the specific information sought, its “relevancy to the proceedings,” and a specific public interest that would be adversely affected if the factual information sought were not disclosed. Id. The applicant must prove, by a preponderance of the evidence, that no state or federal secrets are compromised by disclosure of the information requested, that all other available sources of information have been exhausted, and that disclosure of the information is essential to the protection of the public interest involved. Id. The reporter’s privilege is not absolute, as the party seeking information may apply to the circuit court for an order divesting the reporter of the privilege. 735 ILCS 5/8-903. The Code of
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Civil Procedure sets forth the requirements for such an application. 735 ILCS 5/8-904. In determining whether to grant or deny divestiture, the court must consider the nature of the proceedings, the merits of the claim or defense, the adequacy of otherwise available remedies, the relevancy of the source, and the possibility of using other means to establish the needed information. 735 ILCS 5/8-906. In granting an order of divestiture, the court must find that (a) the information does not concern matters required to be left secret by state or federal law; (b) disclosure is essential to the protection of the public interest involved or, in libel and slander cases, the plaintiff’s need for disclosure outweighs the public interest in confidentiality; and (c) all other available sources of information have been exhausted. 735 ILCS 5/8-907. The extent to which exhaustion of sources must be carried is determined according to the facts of each case. In re Special Grand Jury Investigation of Alleged Violation of Juvenile Court Act, 104 Ill.2d 419, 472 N.E.2d 450, 453 – 454, 84 Ill.Dec. 490 (1984). The party seeking divestiture must prove by a preponderance of the evidence that the requirements of the Code of Civil Procedure have been met. 735 ILCS 5/8-907; In re Subpoena Duces Tecum to Arya, 226 Ill.App.3d 848, 589 N.E.2d 832, 841, 168 Ill. Dec. 432 (4th Dist. 1992). To establish that all other sources of information have been exhausted, “a petitioner must satisfy the court that its investigation has been sufficiently thorough and comprehensive that further efforts to obtain the sought-after information would not likely be successful. It is not sufficient investigation for the State to merely assert that its investigation has not revealed the information sought.” [Emphasis in original.] 589 N.E.2d at 840. The reporter’s privilege protects the reporter from revealing information about the source of information, not the information itself. People v. Palacio, 240 Ill.App.3d 1078, 607 N.E.2d 1375, 1384, 180 Ill.Dec. 862 (4th Dist. 1993). Thus, a court need not make the findings required in §8-907 of the Code of Civil Procedure when the reporter has revealed the source of the information in the news story and the litigant seeks merely to have the reporter confirm the conversation already reported in the newspaper. Id. Unlike other privileges, a reporter does not waive the privilege merely by revealing the source to a third party as long as he or she acts within the scope of the duties of a reporter in doing so. People ex rel. Scott v. Silverstein, 89 Ill.App.3d 1039, 412 N.E.2d 692, 694 – 696, 45 Ill.Dec. 341 (1st Dist. 1980), rev’d on other grounds, 87 Ill.2d 167 (1981). Whether the reporter’s privilege is available in federal courts is the subject of some controversy. In Branzburg v. Hayes, 408 U.S. 665, 33 L.Ed.2d 626, 92 S.Ct. 2646 (1972), the Supreme Court declined to recognize such a privilege. Nevertheless, Justice Powell, whose vote was essential to the five-four decision rejecting the claim of privilege, stated in his concurring opinion that such a claim should be decided on a case-by-case basis balancing the freedom of the press against the obligation to assist in criminal proceedings. See McKevitt v. Pallasch, 339 F.3d 530, 531 (7th Cir. 2003). As Judge Posner noted: A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege, though they do not agree on its scope. See, e.g., In re Madden, 151 F.3d 125, 128 – 29 (3d Cir. 1998); United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998); Shoen v. Shoen, 5 F.3d 1289, 1292 – 93 (9th Cir. 1993); In re
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Shain, 978 F.2d 850, 852 (4th Cir. 1992); United States v. LaRouche Campaign, 841 F.2d 1176, 1181 – 82 (1st Cir. 1988); von Bulow v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987); United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986). A few cases refuse to recognize the privilege, at least in cases . . . that involve grand jury inquiries. In re Grand Jury Proceedings, 5 F.3d 397, 402 – 03 (9th Cir. 1993); In re Grand Jury Proceedings, 810 F.2d 580, 584 – 86 (6th Cir. 1987). 339 F.3d at 532. The Illinois courts have not taken sides. Id.
XV. [7.44] FAIR-REPORT PRIVILEGE The privilege of “fair report” protects journalists who report on public proceedings or statements made or actions taken by public officials. See Michael M. Conway et al., The Illinois Supreme Court and the “Fair Report” Privilege: A Free-Press Victory, 94 Ill.B.J. 414 (2006). The fair-report privilege has two requirements: a. The report must be of an official proceeding. b. The report must be complete and accurate or a fair abridgment of the official proceeding. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.2d 558, 852 N.E.2d 825, 304 Ill.Dec. 369 (2006). The basis of the privilege is the interest of the public in having information made available to it as to what occurs in official proceedings and public meetings. RESTATEMENT (SECOND) OF TORTS §611, cmt. a (1977). The “privilege exists even though the publisher himself does not believe the defamatory words he reports to be true and even when he knows them to be false.” Id. Abuse of the privilege takes place when a publisher does not give a fair and accurate report of the proceeding. Solaia Technolugy, supra, 852 N.E.2d at 843, quoting RESATEMENT §611, cmt. a. “The reporter is not privileged . . . to make additions of his own that would convey a defamatory impression, nor to impute corrupt motives to any one, nor to indict expressly or by innuendo the veracity or integrity of any of the parties.” RESTATEMENT §611, cmt. f.
XVI. [7.45] VIOLENT CRIME VICTIM COUNSELOR’S PRIVILEGE The Illinois Code of Civil Procedure provides for the confidentiality of statements made to personnel counseling victims of violent crimes. The statute expressly provides: Because of the fear and trauma that often result from violent crimes, many victims hesitate to seek help even where it is available and may therefore lack the psychological support necessary to report the crime and aid police in preventing future crimes. 735 ILCS 5/8-802.2(a). The statute is intended to protect victims of violent crimes from public disclosure of statements they make in confidence to counselors of organizations established to help them.
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“Violent crimes” under the Illinois Code of Civil Procedure “include, but are not limited to, any felony in which force or threat of force was used against the victim or any misdemeanor which results in death or great bodily harm to the victim.” 735 ILCS 5/8-802.2(b). When 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 may not be disclosed by the organization or any of its personnel unless the maker of the statement consents in writing. If, in any judicial proceeding, a party alleges that such statements are necessary to the determination of any issue before the court and written consent to disclosure has not been given, the party may ask the court to consider the relevance and admissibility of the statements. In such a case, the court shall hold a hearing in camera on the relevance of the statements. If the court finds them relevant and admissible to the issue, the court shall order the statements to be disclosed. 2 Robert J. Steigmann and Lori A. Nicholson, ILLINOIS EVIDENCE MANUAL §14.20, p. 125 (4th ed. 2006).
XVII. MISCELLANEOUS PRIVILEGES A. [7.46] State Secrets and Affairs of State The “state secrets privilege” is a common-law evidentiary privilege that allows the government to block discovery of any information that, if disclosed, would adversely affect national security. Terkel v. AT&T Corp., 441 F.Supp.2d 899, 908 (N.D.Ill. 2006). The state secrets privilege is not to be lightly invoked. General Dynamics Corp. v. United States, ___ U.S. ___, 179 L.Ed.2d 957, 131 S.Ct. 1900, 1910 (2011). See also United States v. Reynolds, 345 U.S. 1, 97 L.Ed. 727, 73 S.Ct. 528 (1953). Governmental privileges, if created and applied indiscriminately, are thought to undermine public trust in the integrity of the government and its commitment to serving the public interest. People ex rel. Birkett v. City of Chicago, 184 Ill.2d 521, 705 N.E.2d 48, 51, 235 Ill.Dec. 435 (1998). The leading Supreme Court case addressing the state secrets privilege is Reynolds, supra. See Terkel, supra, 441 F.Supp.2d at 908. The claim of privilege must be made formally by the government and lodged by the head of the department that has control over the matter after actual consideration by that officer. Reynolds, supra, 73 S.Ct. at 532. It can be neither claimed nor waived by a private party. Id. Thus, in an action between private parties, an official of the IRS may, pursuant to instructions and regulations of the Service, refuse to testify concerning a search made for tax returns. Ferraro v. Augustine, 45 Ill.App.2d 295, 196 N.E.2d 16, 22 – 23 (1st Dist. 1964). The need for disclosure is decided on a case-by-case basis, balancing the public interest with the defendant’s need to prepare a defense. People v. Quinn, 332 Ill.App.3d 40, 772 N.E.2d 872, 875, 265 Ill.Dec. 501 (1st Dist. 2002). Governmental privileges are generally waived, except with respect to state secrets, when the government is a party plaintiff since it is in that position by its own consent expressed in the statute permitting suit. See United States v. General Motors Corp., 2 F.R.D. 528, 530 (N.D.Ill. 1942); Reynolds, supra, 73 S.Ct. at 532.
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B. [7.47] Compulsory Reports and Public Records Various types of reports are of restricted admissibility as evidenced by the provisions of the statutes that govern the reports. For example, vehicle accident reports required by §11-412 of the Illinois Vehicle Code, 625 ILCS 5/11-412, are made confidential and excluded as evidence in any legal proceeding. Smith v. Johnson, 2 Ill.App.2d 315, 120 N.E.2d 58, 60 (1st Dist. 1954). However, when the testimony of the maker of such an official report is inconsistent with the report, the report may be used for impeachment purposes. Black v. DeWitt, 55 Ill.App.2d 220, 204 N.E.2d 820, 823 (1st Dist. 1965). Statements regarding an alleged violation of the statute in response to questioning by police officers at a place other than the police station are not privileged. People v. LaDew, 160 Ill.App.3d 506, 513 N.E.2d 500, 501, 112 Ill.Dec. 86 (4th Dist. 1987). The particular statute governing the report in question should be consulted. C. [7.48] Proceedings of the Judicial Inquiry Board Article VI, §15, of the Illinois Constitution created the Judicial Inquiry Board. All proceedings of the JIB, except the filing of a complaint with the Courts Commission, are confidential under Article VI, §15(c). The purpose of this provision is to protect judges from unfavorable publicity due to unfounded complaints and to encourage witness participation by providing protection against retaliation and harassment. Owen v. Mann, 105 Ill.2d 525, 475 N.E.2d 886, 891, 86 Ill.Dec. 507 (1985). As a result of this provision, all communications with the JIB are privileged from discovery, at least in civil actions, regardless of whether the information sought is in the hands of the JIB, a complainant, or a witness. Moreover, unlike most privileges, this privilege is not waived by communication of the privileged material to third parties. Id. D. [7.49] Informant’s and Surveillance Location Privileges The informant’s privilege, which has its roots in the English common law, is a misnomer as it is in reality the government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Roviaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623, 627 (1957); Dole v. Local 1942, International Brotherhood of Electrical Workers, AFL-CIO, 870 F.2d 368, 372 (7th Cir. 1989). The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. Roviaro, supra, 77 S.Ct. at 627. The informant’s privilege covers both the informant’s identity and the contents of his or her communications with the government if those contents tend to reveal the informant’s identity. In re EyeCare Physicians of America, 100 F.3d 514, 518 n.5 (7th Cir. 1996). The informant’s privilege is widely recognized in federal and state courts and has been codified into law in Illinois. People v. Price, 404 Ill.App.3d 324, 935 N.E.2d 552, 558, 343 Ill.Dec. 544 (1st Dist. 2010); 735 ILCS 5/8-802.3. The informant’s privilege is “arguably greater” in civil cases than in
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criminal cases. Cochrane’s of Champaign, Inc. v. State of Illinois Liquor Control Commission, 285 Ill.App.3d 28, 673 N.E.2d 1176, 1179, 220 Ill.Dec. 755 (4th Dist. 1996), quoting Dole, supra, 870 F.2d at 372. The surveillance location privilege is a common-law privilege based on and evolved from the related informant’s privilege. Price, supra, 935 N.E.2d at 558. The surveillance location privilege was first recognized in Illinois in People v. Criss, 294 Ill.App.3d 276, 689 N.E.2d 645, 228 Ill.Dec. 586 (4th Dist. 1998). In Criss, the Fourth District found numerous other jurisdictions recognized the surveillance location privilege as an extension of the informant’s privilege and held that a qualified privilege exists for the disclosure of secret surveillance locations during pretrial hearings. 689 N.E.2d at 649. The court explicitly based its holding on the analogous policy justifications for the surveillance and informant’s privileges. Id. The purpose of both the informant’s privilege and the surveillance location privilege is to protect sources from retaliation and to encourage their continuing cooperation with law enforcement. Price, supra, 935 N.E.2d at 558. Public interests must be balanced against a defendant’s constitutional right to a fair trial, making the informant’s privilege and the surveillance location privilege qualified privileges, not absolute privileges. Id. E. [7.50] Voter’s Privilege By statute, a voter may not be compelled to disclose the name of any candidate for nomination, election, or retention in office for whom he or she voted, nor may a voter be compelled to disclose his or her vote on any question of public policy at any election held in Illinois. 735 ILCS 5/8-910. The privilege applies to legal voters and illegal voters. Stevenson v. Baker, 347 Ill. 304, 179 N.E. 842, 848 (1932); Gribble v. Willeford, 190 Ill.App.3d 610, 546 N.E.2d 994, 999, 137 Ill.Dec. 881 (5th Dist. 1989). F. [7.51] Unemployment Insurance Benefit Claim Records Under §1900.1 of the Unemployment Insurance Act, 820 ILCS 405/100, et seq., any information obtained from an individual or employment unit or given to the Director of the Illinois Department of Employment Security (IDES) or any of the Director’s agents or employees with respect to a claim for unemployment insurance benefits is privileged. 820 ILCS 405/1900.1; Howard v. Forbes, 185 Ill.App.3d 148, 541 N.E.2d 685, 133 Ill.Dec. 474 (4th Dist. 1989). The purpose of the Unemployment Insurance Act is to provide compensation benefits to the unemployed in an effort to alleviate their economic distress as a result of involuntary unemployment. 541 N.E.2d at 688. The statutory privilege should be invoked only by a party with a direct, legitimate, and personal interest in preserving the confidentiality of the requested information. The privilege can be waived by the claimant. Id. The court in Hinojosa v. Joslyn Corp., 262 Ill.App.3d 673, 635 N.E.2d 546, 550, 200 Ill.Dec. 207 (1st Dist. 1994), took a different approach from the court in Howard, supra. In Hinojosa, the court found there was no exception for disclosure of information dealing with unemployment compensation arising under the Act for use in collateral litigation, in contrast to the reasoning advanced by Howard. In Hinojosa, workers brought a breach-of-contract action against a former
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employer. During discovery, the workers served the IDES with a subpoena duces tecum for production of unemployment insurance claims records. The First District held information pertaining to workers’ unemployment insurance benefits is privileged and information obtained in accordance with the Act cannot be used in any collateral litigation. G. [7.52] Self-Critical Analysis Privilege The self-critical analysis privilege has its origin in Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970), aff’d, 479 F.2d 920 (1973). In the context of a medical malpractice action, the court in Bredice held that, absent a showing of “exceptional necessity,” a qualified privilege existed to keep confidential the minutes of hospital medical staff committee meetings during which physicians evaluated the clinical practices of the hospital. 50 F.R.D. at 250 – 251. The court reasoned that confidentiality was essential to the success of the self-evaluative staff meetings that, in turn, were essential to improving patient care and treatment. No Illinois state court has adopted the self-critical analysis privilege. Also, the “critical selfanalysis” privilege has never been recognized in Illinois common law. People v. Campobello, 348 Ill.App.3d 619, 810 N.E.2d 307, 322, 284 Ill.Dec. 654 (2d Dist. 2004). The court in In re K.S., 264 Ill.App.3d 963, 637 N.E.2d 1163, 1164 – 1165, 202 Ill.Dec. 427 (1st Dist. 1994), ruled on jurisdictional grounds without addressing the merits of the doctrine. “[T]he Supreme Court and the circuit courts have neither definitively denied the existence of such a privilege, nor accepted it and defined its scope.” Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423, 425 n.1 (9th Cir. 1992). In Burden-Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003), the Seventh Circuit referred to the “self-critical analysis privilege” as “a privilege never recognized in this circuit.” In Bell v. Woodward Governor Co., No. 03 C 50190, 2004 WL 5645759 at *2 (N.D.Ill. Jan. 26, 2004), the court stated that “[b]ecause the Seventh Circuit has not yet taken a definitive position on the proper scope of the self-critical analysis privilege,” it would rely on its past decisions in finding that the privilege does not exist with regard to affirmative action materials. See also Ludwig v. Pilkington North America, Inc., No. 03 C 1086, 2004 WL 1898238 (N.D.Ill. Aug. 13, 2004). In Tice v. American Airlines, Inc., 192 F.R.D. 270, 272 (N.D.Ill. 2000), the court engaged in an extensive analysis of the doctrine, which it described as “relatively unestablished.” The district court acknowledged that the Seventh Circuit Court of Appeals had not yet directly addressed whether a self-critical analysis privilege exists under federal common law but noted that “a number of federal courts have recognized that self-critical analyses are generally privileged and not subject to discovery.” Id. The court concluded that application of the doctrine depends on the nature of the claim. Two different formulations of the general balancing test have emerged. When determining whether the self-critical analysis privilege applies to reports in an employment discrimination case, the court looks at whether the party asserting the privilege establishes that (1) the materials were prepared for mandatory government reports; (2) the privilege is being asserted only to protect subjective, evaluative materials; (3) the privilege is not being asserted to protect objective data in the same reports; and (4) the policy favoring exclusion clearly outweighs the plaintiff’s need for the information. Morgan v. Union Pacific R.R., 182 F.R.D. 261, 264 (N.D.Ill. 1998).
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However, in a tort context or personal injury case, the self-critical analysis privilege “does not require the party asserting the privilege to establish that the report was prepared in response to a governmental mandate.” 182 F.R.D. at 265. Rather, in the tort context, the court looks at whether the party asserting the privilege has established that 1. the information sought resulted from a critical self-analysis undertaken by the party seeking protection; 2. the public has a strong interest in preserving the free flow of the type of information sought; 3. the information is of the type whose flow would be curtailed if discovery were allowed; 4. the document was prepared with the expectation that it would be kept confidential and has in fact been kept confidential. Tice, supra, 192 F.R.D. at 272 – 273. Thus, the Tice court concluded, there is a fundamental difference between tort cases that involve voluntary self-evaluations designed to enhance safety and discrimination cases that involve the fairness of disclosing documents written pursuant to a legal mandate. 192 F.R.D. at 273. In Harris v. One Hope United, Inc., 2013 IL App (1st) 131152, 2 N.E.3d 1132, 377 Ill.Dec. 851, the appellate court held that the self-critical analysis privilege did not apply to a priority review report regarding an infant who died while her family participated in a family service program. Absent the privilege, the priority review report was discoverable in a wrongful-death action brought by the infant’s estate because the report could contain information admissible at trial or could lead to such information. 2013 IL App (1st) 131152 at ¶19. On appeal, One Hope argued its priority review process should be kept confidential so its staff would “freely and candidly” investigate problem cases, and informants would share information with investigators, without fear their remarks would be revealed. 2013 IL App (1st) 131152 at ¶17. The appellate court disagreed and said there was an overriding need to determine the truth with respect to the infant’s cause of death. Id. On March 26, 2014, the Supreme Court of Illinois allowed this case to be appealed. Harris v. One Hope United, Inc., 2014 IL 117200, 5 N.E.3d 1123, 379 Ill.Dec. 14. H. [7.53] Judicial Deliberation Privilege In Thomas v. Page, 361 Ill.App.3d 484, 837 N.E.2d 483, 488, 297 Ill.Dec. 400 (2d Dist. 2005), the appellate court addressed an issue of first impression — whether Illinois should recognize a “judicial deliberation privilege.” The court noted that it found very few cases from other jurisdictions addressing the issue. Of those courts that did address the issue, many did so either in dicta or as an accepted fact without any analysis. The Thomas court concluded that a judicial deliberation privilege exists, protecting confidential communications between judges and the court’s staff, made in the course of the performance of their judicial duties and relating to official court business. 837 N.E.2d at 490. The court held that the confidentiality of judges’ candid communications with their colleagues and staff is a necessary component of the judicial decision-making process. In order to
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protect the effectiveness of that process, judges cannot be burdened with a suspicion that their deliberations and communications might be made public at a later date. The confidentiality of judges’ communications with their staff is designed to benefit the public, not the individual judges and their staff. Id. I. [7.54] Attorney’s Litigation Privilege Illinois courts have recognized the attorney’s litigation privilege provided under §586 of the RESTATEMENT (SECOND) OF TORTS (1977). See, e.g., Atkinson v. Affronti, 369 Ill.App.3d 828, 861 N.E.2d 251, 308 Ill.Dec. 186 (2d Dist. 2006); Thompson v. Frank, 313 Ill.App.3d 661, 730 N.E.2d 143, 246 Ill.Dec. 463 (3d Dist. 2000). Section 586 provides: An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding. The privilege is absolute and is based on “a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.” August v. Hanlon, 2012 IL App (2d) 111252, ¶35, 975 N.E.2d 1234, 363 Ill.Dec. 925 (2d Dist. 2012), quoting RESTATEMENT §586, cmt. a. An attorney must be at liberty to candidly and zealously represent his or her client in communications to potential opposing parties in litigation or other proceedings without the specter of civil liability for his or her statements clouding his or her efforts. Atkinson, supra, 861 N.E.2d at 255. Thus, the privilege provides a complete bar to a claim for defamation, regardless of the defendant’s motive or the unreasonableness of his conduct. Thompson, supra, 730 N.E.2d at 145. In light of the complete immunity provided by this privilege, “the classification of absolutely privileged communications is necessarily narrow.” Id. See also August, supra, 2012 IL App (2d) 111252 at ¶35, citing Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill.App.3d 156, 788 N.E.2d 740, 748, 273 Ill.Dec. 149 (1st Dist. 2003). The privilege is available only when the publication (1) was made in a judicial proceeding, (2) had some connection or logical relation to the action, (3) was made to achieve the objects of the litigation, and (4) involved litigants or other participants authorized by law. August, supra, 2012 IL App (2d) 111252 at ¶35, citing Kurczaba v. Pollock, 318 Ill.App.3d 686, 742 N.E.2d 425, 438, 252 Ill.Dec. 175 (1st Dist. 2000). The communication must pertain to “proposed or pending litigations,” and “[a]ll doubts should be resolved in favor of a finding of pertinency, which is a question or law for the court.” Atkinson, supra, 861 N.E.2d at 255, quoting Golden v. Mullen, 295 Ill.App.3d 865, 693 N.E.2d 385, 389, 230 Ill.Dec. 256 (1st Dist. 1997). If the defamatory statements have “no connection whatever with the litigation,” then no privilege will attach. Id. Although the defendant’s conduct is otherwise actionable, because he or she is acting in furtherance of some interest of social importance, the communication is protected and no liability will attach, even at the expense of uncompensated harm to the plaintiff’s reputation. The attorney’s litigation privilege has been extended to out-of-court communications between opposing counsel, out-of-court communications between attorney and client related to pending
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§7.55
litigation, out-of-court communications between attorneys representing different parties suing the same entities, statements made during quasi-judicial proceedings, communications necessarily preliminary to quasi-judicial proceedings, and posttrial remarks related to judicial proceedings made by an attorney to his or her client. August, supra, 2012 IL App (2d) 111252 at ¶36, citing Golden, supra, 693 N.E.2d at 389). See also RESTATEMENT §586. However, Illinois courts have not extended the privilege to cover an attorney’s out-of-court communications to other persons. See, e.g., Golden, supra (declining to extend privilege to cover out-of-court communications between attorney and former client’s spouse); Kurczaba, supra, 742 N.E.2d at 440 (“Illinois clearly limits the attorney litigation privilege and has refused to extend it to thirdparty communications unrelated to a lawsuit.”); Thompson, supra (holding that attorney’s litigation privilege does not apply to out-of-court communication between attorney and opposing party’s spouse). In August, the court held that the attorney’s litigation privilege did not extend to allegedly defamatory statements made outside the judicial proceeding to a newspaper reporter who was not connected to the lawsuit. 2012 IL App (2d) 111252 at ¶37. The privilege has been extended to cases involving invasion of privacy and intentional or tortious interference with prospective economic advantage. See Bond v. Pecaut, 561 F.Supp. 1037 (N.D.Ill. 1983); Geick v. Kay, 236 Ill.App.3d 868, 603 N.E.2d 121, 177 Ill.Dec. 340 (2d Dist. 1992); Morton v. Hartigan, 145 Ill.App.3d 417, 495 N.E.2d 1159, 99 Ill.Dec. 424 (1st Dist. 1986). A private litigant enjoys the same privilege concerning a proceeding to which he or she is a party. RESTATEMENT §587. J. [7.55] Deliberative Process Privilege The deliberative process privilege, also known as the executive privilege, protects communications that are part of the decision-making process of a governmental agency. United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993). Governmental decision-making creates a need to preserve the confidentiality of intragovernmental documents reflecting the mental processes of decision makers. People ex rel. Birkett v. City of Chicago, 184 Ill.2d 521, 705 N.E.2d 48, 55, 235 Ill.Dec. 435 (1998). The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news. Department of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 149 L.Ed.2d 87, 121 S.Ct. 1060, 1065 – 1066 (2001). The objective of the privilege is to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the government. Id. The deliberative process privilege protects from discovery predecisional documents that reflect opinions, recommendations, and deliberations generated in the course of a governmental agency’s decision-making process. Birkett, supra, 705 N.E.2d at 54. See also Department of Interior, supra, 121 S.Ct. at 1065 – 1066. A document is protected under the privilege only if it is “predecisional” — generated before the adoption of an agency policy — and “deliberative” — reflecting the give and take of the consultative process. K.L. v. Edgar, 964 F.Supp. 1206, 1208 (N.D.Ill. 1997). The privilege does not extend to factual or objective material or to documents the agency adopts as its position on an issue. Id.
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The privilege is not absolute. Birkett, supra, 705 N.E.2d at 55. It is a qualified privilege that can be overcome if the party seeking discovery shows a sufficient need for the privileged documents. In showing a sufficient need, the party must establish that the documents are relevant and that the party has a particularized need for the documents that outweighs the government’s interest in maintaining confidentiality. Id. See also United States v. Board of Education of City of Chicago, 610 F.Supp. 695, 698 (N.D.Ill. 1985). The deliberative process privilege has been recognized by the United States Supreme Court, the Seventh Circuit Court of Appeals, and other federal and state courts. Birkett, supra, 705 N.E.2d at 55. However, there is no deliberative process privilege in Illinois protecting documents from pretrial discovery. 705 N.E.2d at 51. The Supreme Court of Illinois refused to adopt the privilege, explaining that, if created and applied indiscriminately, such a privilege would undermine public trust “in the integrity of the government and its commitment to serving the public interest.” Id., quoting Gerald Wetlaufer, Justifying Secrecy: An Objection to the General Deliberative Privilege, 65 Ind.L.J. 845, 890 (1990). The Supreme Court in Birkett concluded that “the extension of an existing privilege or establishment of a new one is a matter best deferred to the legislature.” 705 N.E.2d at 51.
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