Archer Daniels Midland Co. v. Koppers Co., Inc.

• Decision Date: 20 November 1985
• Docket Number: No. 84-1545,84-1545
• Citation: 485 N.E.2d 1301,93 Ill.Dec. 91,138 Ill.App.3d 276
• Parties: , 93 Ill.Dec. 91 ARCHER DANIELS MIDLAND COMPANY, a corporation, Plaintiff, v. KOPPERS COMPANY, INC., a corporation; Sprout Waldron & Company, Inc., a Division of Koppers Company, Inc.; A.O. Smith Harvestore Products, Inc., A corporation; and Kirk's Construction Company, a corporation, Defendants. ARCHER DANIELS MIDLAND COMPANY, a corporation, Plaintiff-Appellee, v. A.O. SMITH HARVESTORE PRODUCTS, INC., a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1301

485 N.E.2d 1301

138 Ill.App.3d 276, 93 Ill.Dec. 91

ARCHER DANIELS MIDLAND COMPANY, a corporation, Plaintiff, v. KOPPERS COMPANY, INC., a corporation; Sprout Waldron &

Company, Inc., a Division of Koppers Company, Inc.; A.O.

Smith Harvestore Products, Inc., A corporation; and Kirk's

Construction Company, a corporation, Defendants.

ARCHER DANIELS MIDLAND COMPANY, a corporation, Plaintiff-Appellee, v. A.O. SMITH HARVESTORE PRODUCTS, INC., a corporation,

Defendant-Appellant.

No. 84-1545.

Appellate Court of Illinois First District, Third Division.

Nov. 20, 1985.

Galliani & Doell, Ltd., Chicago, for defendant-appellant.

Clausen Miller Gorman Caffrey & Witous, P.C., Chicago (Mayer Goldberg, James T. Ferrini and Ronald A. Armbrust, of counsel), for plaintiff-appellee.

McNAMARA, Justice.

Plaintiff, Archer Daniels Midland Company, brought this action to recover damages allegedly sustained on July 7, 1979, when its structure, located in Galesburg, Illinois and used for the storage of soya meal, collapsed. One of the defendants, A.O. Smith Harvestore Products, Inc., designed, manufactured and sold the product. During the course of pre-trial discovery, A.O. Smith refused to produce an employee's report as ordered by the court after several hearings and an in camera inspection of the report. (This court has also made an in camera inspection of the report.) Trial counsel for A.O. Smith requested the trial court to find him in civil contempt to facilitate appeal. The trial court did so and A.O. Smith appeals, contending that the report is protected from disclosure by the attorney-client privilege.

Plaintiff purchased the structure in November, 1976. The unit was shipped to its Galesburg plant in December 1976, and construction was completed in April 1977. Repairs were required in June 1977 and October 1977. Further problems manifested themselves in October, 1978. In July 1979, the unit collapsed and caused damage to plaintiff's property, including the 300 to 350 tons of soya meal stored in the structure. Plaintiff filed suit, and subsequently initiated discovery.

In August 1982, plaintiff asked A.O. Smith for any documents relating to the storage tank and any documents regarding examination or reports made by experts which touched on the issue raised in the suit. After numerous denials that such documents reflecting expert analysis existed, plaintiff took the deposition of A.O. Smith's senior product engineer, James E. Gordon.

Gordon stated that he performed a study in 1980 at the request of A.O. Smith's in-house counsel. The study, according to Gordon, "was purely an analysis of the structural strengths of each model structure that we had in use for soybean storage. It was a relative comparison of the strength of one model versus the strength of another model, and a projection of what might constitute potential danger versus what might not." The law department had requested the report, according to A.O. Smith, to "provide them with some technical information on structural integrity as it depended upon structure application." A.O. Smith's in-house counsel further described the report as "a review of the structural parameters of all [A.O. Smith] structures and to compare those structural parameters to the structural parameters of particular units for non-agricultural purposes that had resulting problems. Further advice was requested on technical modifications that might be required in the non-agricultural [A.O. Smith] structures."

The report by Gordon was dated November 20, 1980, and was directed to the then acting in-house counsel for A.O. Smith. It was marked "confidential" and copies were given to four individuals in A.O. Smith who had some involvement with product safety. The report apparently was used in making a decision to notify the owners of certain types of A.O. Smith structures of potential dangers in using the structures.

Plaintiff's production request was renewed repeatedly. Numerous hearings were held. The trial court made an in camera inspection of the report and found that there was no attorney-client privilege applicable to the report.

The Illinois courts maintain a broad discovery policy, looking to the ultimate ascertainment of truth. (Monier v. Chamberlain (1966), 35 Ill.2d 351, 221 N.E.2d 410.) The courts, therefore, narrowly construe the attorney-client privilege in order to avoid trammeling upon the broad discovery policy. The need for this narrow construction demands particular attention in a corporate context, where the privilege has the potential of posing an absolute bar to the discovery of relevant and material evidentiary facts because of the large number of employees who frequently contact the corporation's lawyers, and the masses of documents used in business today. (Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill.2d 103, 59 Ill.Dec. 666, 432 N.E.2d 250.) That holding mandated that we must strive to deter such extensive insulation of these vast amounts of material from the truth-seeking process by limiting the privilege for the corporate client to the extent reasonably necessary to achieve the basic purpose of the privilege. Yet we must remember that the purpose underlying the...