Claxton v. Thackston

• Decision Date: 29 June 1990
• Docket Number: No. 1-89-1213,1-89-1213
• Citation: 201 Ill.App.3d 232,147 Ill.Dec. 82,559 N.E.2d 82
• Parties: , 147 Ill.Dec. 82 John CLAXTON, Plaintiff-Appellee, v. Richard D. THACKSTON, Sr., d/b/a "A Storage Inn", Defendant. Richard D. THACKSTON, Sr., d/b/a "A Storage Inn", Third-party Plaintiff, v. MAYER MANUFACTURING CORPORATION, Third-party Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 82

559 N.E.2d 82

201 Ill.App.3d 232, 147 Ill.Dec. 82

John CLAXTON, Plaintiff-Appellee, v. Richard D. THACKSTON, Sr., d/b/a "A Storage Inn", Defendant.

Richard D. THACKSTON, Sr., d/b/a "A Storage Inn", Third-party Plaintiff, v. MAYER MANUFACTURING CORPORATION, Third-party Defendant-Appellant.

No. 1-89-1213.

Appellate Court of Illinois First District, Sixth Division.

June 29, 1990.

David J. Fitzpatrick, Matyas & Norris, Chicago, for third-party defendant-appellant.

Edward L. Osowski, Chicago, for plaintiff-appellee; James G., Andros, Chicago, of counsel.

Justice RAKOWSKI delivered the opinion of the court:

In this appeal, we are asked to decide whether an eyewitness statement given by an employee of defendant Mayer Manufacturing Corp. (Mayer) is an attorney-client communication and, therefore, privileged from disclosure under Supreme Court Rule 201(b)(2) (107 Ill.2d R. 201(b)(2)). The circuit court ordered production; defendant refused and was held in contempt. The court then entered judgment on the contempt finding in the amount of $1.00 against Mayer's attorney. We therefore have jurisdiction pursuant to People ex rel. Scott v. Silverstein (1981), 87 Ill.2d 167, 174, 57 Ill.Dec. 585, 429 N.E.2d 483.

The issues on appeal are: (1) whether proponent Mayer met its burden of articulating those threshold facts which are necessary to qualify the statement as an attorney-client communication; and (2) whether an otherwise privileged attorney-client communication looses its status because it is an eyewitness report. We affirm on other ground.

The uncontested facts are these. On January 11, 1984, the plaintiff John Claxton was injured while moving equipment for his employer Mayer Manufacturing at the facility of defendant Richard D. Thackston, Sr., d/b/a "A Storage Inn" (Thackston) in Homewood, Illinois. Cameron MacGregor, plaintiff's supervisor, was present when the accident occurred and afterwards helped Claxton into the truck for a ride back to the Mayer plant.

Subsequently, Claxton sued Thackston for damages. Thackston brought a third-party complaint against Mayer for contribution. Claxton then noticed the deposition of MacGregor and requested production of a written statement made by MacGregor to an insurance carrier on September 4 or 6, 1984 (the record is unclear). Defendant refused to produce the statement, claiming attorney-client privilege because MacGregor was a member of the control group for the Mayer Corporation.

Plaintiff moved the court for a production order and at a hearing on March 22, 1989, the court ordered Mayer to produce MacGregor's written statement for in camera inspection within seven days. The statement was not produced.

Instead, Mayer filed an affidavit by Cameron MacGregor wherein MacGregor stated that he was a member of the Board of Directors of Mayer at the time of the accident. Moreover, at the time of the accident, "affiant had sole authority over all manufacturing aspects of Mayer Manufacturing Corporation and all attendant supervisory authority over all production employees." MacGregor stated further that his responsibilities also included the investigation of "all production related accidents, such as that involved in the subject occurrence, and reporting the details of the same to his corporation's liability carrier."

According to the affidavit, on September 6, 1984, MacGregor prepared a "two-page confidential letter to [Mayer's] liability insurance carrier, respecting affiant's knowledge of the January 11, 1984 accident of its then employee, the plaintiff, John Claxton." MacGregor stated that: "It was affiant's understanding that this letter was offered to assist and safeguard his corporation, Mayer Manufacturing, from any potential liability, and it was further affiant's understanding that this letter would be offered in confidence for this purpose, and that it would not be circulated for any other use."

The rule governing protection of attorney-client communications and attorney work product from discovery is 201(b)(2) of the Supreme Court Rules (107 Ill.2d R. 201(b)(2)) which provides that: "All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. 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 party who claims a privilege "has the burden of showing the facts which give rise to the privilege." (Cox v. Yellow Cab Co. (1975), 61 Ill.2d 416, 419-20, 337 N.E.2d 15, quoting Krupp v. Chicago Transit Authority, (1956), 8 Ill.2d 37, 42, 132 N.E.2d 532.) Among other things, the party must prove that the statement was made for a privileged purpose (Cox, 61 Ill.2d at 420, 337 N.E.2d 15) and show the circumstances under which the statement was made (Krupp, 8 Ill.2d at 42, 132 N.E.2d 532).

The burden of proof reflects the policy behind attorney-client privilege. Not all communications between attorney and client are privileged. The privilege exists so that a present or potential client may "consult freely with counsel without fear of compelled disclosure." (People v. Adam (1972), 51 Ill.2d 46, 48, 280 N.E.2d 205, cited in Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill.2d 103, 118, 59 Ill.Dec. 666, 432 N.E.2d 250.) Under some circumstances, the privilege can pose an absolute bar to the discovery of relevant material and contravene the broad discovery which is essential for the fair disposition of a lawsuit. (Consolidation Coal, 89 Ill.2d at 118, 59 Ill.Dec. 666, 432 N.E.2d 250.) For this reason, courts limit the protection of the privilege, especially in a corporate context where broad privilege would effectively make most relevant material immune from discovery. Consolidation Coal, 89 Ill.2d at 117-19, 59 Ill.Dec. 666, 432 N.E.2d 250.

To be entitled to the privilege, a claimant must show that the statement: (1) originated in a confidence that it would not be disclosed; (2) was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) remained confidential. (Consolidation Coal, 89 Ill.2d at 119, 59 Ill.Dec. 666, 432 N.E.2d 250.) Beyond this, a corporate claimant must show that the statement was made by someone in the corporate "control group," that is, someone who was:

"(1) * * * in an advisory role to top management, such that the top management would normally not make a decision in the employee's particular area of expertise without the employee's advice or opinion; and (2) [whose] opinion [did] in fact form the basis of the final decision by those with actual authority." Archer Daniels Midland Co. v. Koppers Co. (1985), 138 Ill.App.3d 276, 279, 93 Ill.Dec. 91, 485 N.E.2d 1301, citing Consolidation Coal, 89 Ill.2d at 120, 59 Ill.Dec. 666, 432 N.E.2d 250.

The control-group test provides a balance between privilege and discovery. (Consolidation Coal, 89 Ill.2d at 118-19, 59 Ill.Dec. 666, 432 N.E.2d 250.) The focus of the court for finding privilege is "on individual people who substantially influenced decisions, not on facts that substantially influenced decisions." (Archer Daniels, 138 Ill.App.3d at 280, 93 Ill.Dec. 91, 485 N.E.2d 1301.) In Consolidation Coal and Archer Daniels, for example, the court found that employees who provided the technical information about accidents and safety features to opinion makers, were not themselves in the control group and, therefore, their communications were not privileged. In Knief v. Sotos (1989), 181 Ill.App.3d 959, 964-65, 130 Ill.Dec. 503, 537 N.E.2d 832, the appellate court found that a head manager and head waitress, who had information about the drinking of a customer, were not in the control group. To argue that the statements of these two people should be protected, the proponents would have to prove "that no final decision as to this litigation would be made without first consulting the head manager and head waitress." Knief, 181 Ill.App.3d at 965, 130 Ill.Dec. 503, 537 N.E.2d 832.

Under Illinois law, attorney-client privilege also extends to "communications between an insured and insurer, where the insurer is under an obligation to defend." (Braglia v. Cephus (1986), 146 Ill.App.3d 241, 249, 100 Ill.Dec. 106, 496 N.E.2d 1171, citing People v. Ryan (1964), 30 Ill.2d 456, 460, 197 N.E.2d 15.) This rule reflects the fact that the liability carrier usually selects the attorney under a common liability contract. Thus, "the insured may properly assume that the communication is made to the insurer as an agent for the dominant purpose of transmitting it to an attorney for the protection of the interests of the insured." Ryan, 30 Ill.2d at 460-461, 197 N.E.2d 15. When a proponent cannot prove that a statement should be protected, submitting it for in camera inspection is a reasonable procedure for finding if a basis for privilege exists. Johnson v. Frontier Ford, Inc. (1979), 68 Ill.App.3d 315, 321, 24 Ill.Dec. 908, 386 N.E.2d 112; see also, Ill.Rev.Stat.1987, ch. 110A, par. 415(f).

Once privilege attaches to a communication, it is immaterial...