CNR Investments, Inc. v. Jefferson Trust and Sav. Bank of Peoria
| Decision Date | 30 June 1983 |
| Docket Number | No. 82-812,82-812 |
| Parties | , 71 Ill.Dec. 612 CNR INVESTMENTS, INC., a Delaware corporation, Plaintiff-Appellee, v. The JEFFERSON TRUST AND SAVINGS BANK OF PEORIA, an Illinois banking corporation, Defendant, and Dean B. Rhoads, Contemnor-Appellant. |
| Court | United States Appellate Court of Illinois |
Dean B. Rhoads, Sutkowski & Washkuhn Assoc., Peoria, for contemnor-appellant.
Robert L. Burhans, Peoria, for defendant.
Lyle W. Allen, Heyl, Royster, Voelker & Allen, Peoria, for plaintiff-appellee.
The plaintiff, CNR Investments, Inc., filed suit against the defendant, Jefferson Trust and Savings Bank, which required the trial court to interpret various contracts. The plaintiff requested various documents and to this request the defendant objected and asserted the attorney-client privilege in support of its objection. This appeal is concerned with five documents which are identified as documents numbered 37, 41, 42, 43 and 66. These documents were subject to an in-camera examination, after which the defendant was ordered to produce the same. The defendant's attorney, Dean B. Rhoads, refused to produce the documents and requested the trial court to find him in contempt so as to facilitate an appeal of the trial court's order to produce. Attorney Rhoads was found to be in contempt and a fine in the amount of $100 was imposed upon him. This appeal ensued and the sole issue presented for determination is whether the attorney-client privilege applies to any or all of the five documents, more specifically described as follows:
Item No. Date Author
-------- ------- -------------------
37 9/13/72 Lester A. Kassing
41 9/25/74 Unknown
42 9/26/74 R. Pratt
43 9/27/74 Unknown
66 8/6/79 John McGrath C.P.A
The attorney-client privilege has been defined by this court as protecting:
The defendant, Jefferson Trust, who claims the attorney-client privilege, is a corporation. Being a corporation certain requirements must be met before the privilege is applicable. In our State the privilege applies to those employees within the "control group" of the corporation. The control group is defined as those top management persons who have the responsibility of making final decisions and those employees whose advisory roles to top management are such that a decision would not normally be made without those persons' advice or opinions and whose opinions in fact form the basis of any final decision. Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill.2d 103, 59 Ill.Dec. 666, 432 N.E.2d 250.
Attention is first directed to document number 41. As previously noted, this document was authored by some person whose identity is unknown. An examination of it and the record fails to disclose that it was prepared by an attorney, directed to an attorney or prepared as a memorandum of information or advice received from an attorney. The document stands alone unsupported by any testimony or affidavit from which one could conclude that it was prepared in confidence. It meets none of the criteria which trigger the attorney-client privilege.
The author of document 43 is also unknown. The defendant bank, however, claims that it is exempted from disclosure because of the attorney-client privilege since it recites a conversation with the attorney for the bank. The document does refer to a conversation with the defendant bank's attorney, however, again we have a document unsupported by any evidence of its confidentiality or that the unknown author was an employee of the bank or a member of its control group as required by the Consolidation Coal Co. case.
Document number 42 is authored by R.R. Pratt, however, the status of Pratt is unknown. It would be logical to presume that he is or was an employee of the bank, yet presumptions are not sufficient to invoke the attorney-client privilege. Again a situation is presented where there is no evidence as to whether the author was a member of the "control group"...
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...risk of a contempt citation is an acceptable method for challenging the validity of a discovery order. See, e.g., CNR Invest. v. Jefferson Tr. & Sav. Bank, 115 Ill.App.3d 1071, Syl. p 8, 71 Ill.Dec. 612, 451 N.E.2d 580 (1983). If the underlying order is erroneous, the appellate court vacate......