Kemeny v. Skorch, Gen. No. 47540

CourtUnited States Appellate Court of Illinois
Citation159 N.E.2d 489,22 Ill.App.2d 160
Docket NumberGen. No. 47540
PartiesGeorge KEMENY, Plaintiff-Appellant, v. Walter SKORCH, Sr., and Walter Skorch, Jr., Defendants-Appellees. PEOPLE of the State of Illinois, Petitioner-Appellee, v. James A. DOOLEY, Respondent-Appellant.
Decision Date15 June 1959

James A. Dooley, Chicago, pro se.

Vogel & Vogel, Chicago, Robert C. Vogel, Robert B. Johnstone, Chicago, of counsel, for appellees.

SCHWARTZ, Justice.

The problem presented by this appeal is whether the defendants' attorney on a pre-trial hearing in a personal injury case should be allowed to have the report of a medical examination made for plaintiff's attorney by an examining physician. An examining physician or medical expert is one who examines a patient not with a view to treating him, but to report his findings to the attorney and ultimately to testify if the case goes to trial. James A. Dooley (hereinafter called respondent), attorney for plaintiff, offered the reports of attending physicians, but refused to submit the report of the examining physician unless defendants stipulated that it would not be used or referred to by defendants' counsel on the trial of the cause. Defendants' counsel would not agree to that condition. The court ordered respondent to submit the report unconditionally. Respondent refused and the trial court fined him $50 and costs for contempt. From that finding, respondent has appealed to this court.

On oral argument we were advised by both sides that this is in the nature of a test case to settle an issue now disturbing and delaying the disposition of personal injury matters through the pre-trial conference route.

At the threshold of our consideration of the matter we are met with the argument by defendants that this court has no jurisdiction to pass upon the question on this appeal; that the order of a court having jurisdiction must be obeyed until it is reversed or set aside in a direct proceeding for that purpose; and that in a proceeding for contempt it cannot be urged that the order is invalid as long as the respondent is in contempt thereof.

Where subjection to a contempt citation is a means of testing a pre-trial order, courts have allowed the question to be raised in that way. Carden v. Ensminger, 329 Ill. 612, 161 N.E. 137, 58 A.L.R. 1256; Krupp v. Chicago Transit Authority, 8 Ill.2d 37, 132 N.E.2d 532; Hruby v. Chicago Transit Authority, 11 Ill.2d 255, 142 N.E.2d 81; Lester v. People, 150 Ill. 408, 23 N.E. 387, 37 N.E. 1004; Red Star Laboratories Co. v. Pabst, 359 Ill. 451, 194 N.E. 734; People ex rel. Jamontas v. Miller, 245 Ill.App. 524; Hayes v. Chicago Transit Authority, 340 Ill.App. 375, 92 N.E.2d 174. In Carden v. Ensminger, supra, 329 Ill. at page 620, 161 N.E. at page 140, the court said:

'If the party against whom the order is made wishes to contest the validity of the order he may refuse to obey and in a prosecution for contempt show in defense that the court had no authority to make the order.'

There is a different line of cases where courts have refused to test the validity of an order in a contempt proceeding. Among those have been labor cases such as Ash-Madden-Rae Co. v. International Ladies' Garment Workers' Union, 290 Ill. 301, 125 N.E. 258, and O'Brien v. People ex rel. Kellogg Switchboard & Supply Co., 216 Ill. 354, 75 N.E. 108, where contempt resulted from failure to obey an injunction order. It is obvious that if the injunction order were not obeyed, a fait accompli would have resulted regardless of what the appellate Court did. In any event, it is clear that in pre-trial discovery matters such as this, an appeal is allowed from a contempt order.

The order in question rests upon the interpretation of Supreme Court Rule 19-5(1) which reads as follows:

'Rule 19-5(1) Matters Privileged against Discovery.

'All matters which are privileged against disclosure upon the trial are privileged against disclosure through any discovery procedure. Disclosure of memoranda, reports or documents made by or for a party in preparation for trial or any privileged communications between any party or his agent and the attorney for the party shall not be required through any discovery procedure.' Ill.Rev.Stat.1957, c. 110, § 101.19-5(1).

This rule makes three classes of documents exempt from disclosure through discovery procedure: (1) those matters privileged against disclosure on trial; (2) memoranda, reports or documents made by or for a party in preparation for trial; and (3) any privileged communications between any party or his agent and the attorney for the party.

Respondent has argued as if a privileged communication were involved; that is, a privileged communication as distinguished from a report made in preparation for trial. There is an important distinction. If the document in question is privileged and we were to so hold, then it would not be available either on discovery proceedings or on trial, no matter how material or relevant it would appear to be. On the other hand, if it is a report made in preparation for trial but not privileged, then, although not available in discovery proceedings, it may be available upon trial, if material and relevant. We must therefore select the theory on which we make our decision; otherwise it could be argued that it was the law of this case that the document was privileged.

To support his position, respondent has cited five Illinois cases: Stafford v. City of Chicago, 14 Ill.App.2d 114, 143 N.E.2d 68; Hayes v. Chicago Transit Authority, 340 Ill.App. 375, 92 N.E.2d 174; People v. White, 8 Ill.App.2d 428, 131 N.E.2d 803; Chapman v. Gulf, M. & O. R. Co., 337 Ill.App. 611, 86 N.E.2d 552; Eizerman v. Behn, 9 Ill.App.2d 263, 132 N.E.2d 788. Before considering these cases, we desire to clarify the confusion created by the exemption from discovery of the so-called 'work product' of the lawyer and the term 'privilege.' If we accept the word 'privileged' in its usage in law as a term of art to define communications such as those between husband and wife or attorney and client, which are held to be confidential and not subject to disclosure although relevant to an issue on trial, then a medical report made by a doctor to a lawyer concerning his client's physical condition is not privileged. Unfortunately, the term 'privilege' has been made ambiguous by its application to statements taken by a lawyer from witnesses, and embraced in the phrase 'work product.'

The case from which the theory of privilege for a lawyer's 'work product' stems is Hickman v. Taylor, 1946, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. The phrase was first used in the opinion of the Court of Appeals (Hickman v. Taylor, 3 Cir., 153 F.2d 212). Suit was brought by an administrator for the death of a seaman drowned when a tug capsized. The plaintiff desired statements which the defendant's attorney had taken from members of the crew. The trial court required the attorney to comply and on his refusal, held him in contempt. The Court of Appeals, in passing upon the case, said that the test is not whether the documents would be competent as evidence, since they might contain statements of fact which could be the source of other information which would be admissible, but the court was concerned with the impact of the rules for discovery as they affected the lawyer-client relationship. They said they were clear in their own minds that memoranda of talks with witnesses, signed statements of witnesses, and lawyers' recollections of talks with witnesses are 'privileged' within the rule. They said that this is difficult to phrase properly, and then made the effort, as follows, at page 223:

'But here we are dealing with intangible things, the result of the lawyer's use of his tongue, his pen, and his head, for his client. This was talked about as the 'work product of the lawyer' in the argument of the case. This is a phrase which seems pretty well to describe what we are after, though we hesitate to adopt it as a label for our concept for fear that it may contain implications not now apparent to us.'

In passing upon the case, the Supreme court of the United States adopted the phrase 'work product,' but did so with a sharp, qualifying statement as follows (329 U.S. at pages 511-512, 67 S.Ct. at page 394):

'Where relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty. * * * But the general policy against invading the privacy of an attorney's course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. That burden, we believe, is necessarily implicit in the rules as now constituted.'

The net effect of the decision in the Hickman case is to exclude from pre-trial discovery statements of lay witnesses taken by a lawyer for one of the parties. Even this limited application is further qualified, for production of such statements might be required under a host of circumstances enumerated in the quotation from the Supreme Court decision. However, the phrase 'work product' was alluring and was used in cases where its precise application was unwarranted. Our own court made such use of it. We will consider cases cited by counsel in support of his position.

In Eizerman v. Behn, 9 Ill.App.2d 263, 132 N.E.2d 788, this court used the phrase 'work product' in...

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