Radiant Burners, Inc. v. American Gas Association, 57 C 1167.

Decision Date03 August 1962
Docket NumberNo. 57 C 1167.,57 C 1167.
Citation207 F. Supp. 771
PartiesRADIANT BURNERS, INC., an Illinois corporation, Plaintiff, v. AMERICAN GAS ASSOCIATION, a not-for-profit corporation; Allied Gas Co., a corp.; Autogas Company, a corp.; Central Illinois Electric and Gas Co., a corp.; Central Illinois Public Service Company, an Illinois corp.; Central Indiana Gas Company, an Indiana corp.; Citizens Gas & Coke Utility, an Indiana corp.; Crown Stove, a corp.; Gas Appliance Service, Inc., a corp.; Illinois Power Company, an Illinois corp.; Indiana Gas & Water Company, an Ill. corp.; Mid-Continent Metal Products Company, a corp.; Michigan Consolidated Light Company, a Michigan corp.; Florence Stove Company, a corp. to be known as Geo. D. Roper Corporation; Milwaukee Gas & Light Company, a Wisc. corp.; Natural Gas Pipeline Co. of America, a corp.; Northern Indiana Public Service Company, an Ind. corp.; Norge Sales Corp., a corp.; North Shore Gas Co., an Ill. corp.; Portland Gas & Coke Company, a Washington corp.; Sellers Engineering Company, a corp.; Texas-Illinois Natural Gas Pipeline Co., a corp.; Washington Natural Gas Company, a Washington corp.; Wisconsin-Michigan Power Company, a Wisc. corp., Defendants.
CourtU.S. District Court — Northern District of Illinois

Lee A. Freeman, Richard F. Levy, Victor Neumark, Chicago, Ill., for plaintiff.

Ross, McGowan & O'Keefe, Chicago, Ill., for Peoples Gas Light & Coke Co.

Isham, Lincoln & Beale, Chicago, Ill, for Northern Illinois Gas Co.

Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Chicago, Ill., for American Gas Association, Inc.

James J. Gaughan, Chicago, Ill., for Autogas Company.

Dallstream, Schiff, Hardin, Waite & Dorschel, Chicago, Ill., for North Shore Gas Company.

MacLeish, Spray, Price & Underwood, Chicago, Ill., for Bryant Manufacturing Co.

Bell, Boyd, Marshall & Lloyd, Chicago, Ill., for General Electric Co.

Pope, Ballard, Uriell, Kennedy, Shepard & Fowle, Chicago, Ill., for Delco

Appliance Division of General Motors Corporation.

Olson, Mecklenburger, von Holst, Pendleton & Neuman, Chicago, Ill., for Janitrol Heating & Air-Conditioning, a Division of Midland-Ross Corporation.

Brainerd Chapman, Chicago, Ill., for Mueller Climatrol Division of Worthington Corp.

Karl C. Williams, Rockford, Ill., and Porter, Quale, Porter & Zirbel, Milwaukee, Wis., for Permaglas Div. of A. O. Smith Corporation.

Winston, Strawn, Smith & Patterson, Chicago, Ill., for Heating & Air-Conditioning Division of Stewart-Warner Corporation, for defendants.

CAMPBELL, Chief Judge.

This cause since coming to my calendar recently has been satisfactorily proceeding with discovery and pre-trial in accordance with the excellent procedures established in these fields for protracted anti-trust litigation by the Judicial Conference. I take this opportunity of again expressing to all counsel my appreciation for their cooperation and assistance in this regard.

As part of this procedure, I have recently read and considered several files of assorted documents from the New York law firm of LeBoeuf, Lamb and Leiby, submitted by counsel of record herein for the American Gas Association, hereinafter referred to as AGA, a defendant. It is AGA's contention that the information contained in these files was obtained by the LeBoeuf firm in their capacity as attorneys for AGA and therefore the documents were and are privileged from disclosure to the plaintiff. At a pretrial hearing on April 27, 1962, I indicated certain documents upon which I found this claim of privilege to have been properly asserted. I returned these documents to AGA's attorneys. At the same time I designated other documents which I found did not justify an allowance of the claim of attorney-client privilege, whereupon these were delivered over to plaintiff's attorney for inspection. Thus, with the exception of a relatively small portion of one of the files I have either returned or delivered over for inspection all of the documents presented to me so as not to interrupt our pre-trial discovery schedule.

Remaining now before me are eight letters which I have retained from file "619" for further consideration upon briefs and for ruling by memorandum. At a subsequent pre-trial hearing on May 7, 1962, I received an additional document for consideration from another defendant, the Delco Appliance Division of General Motors. This document will also be considered in this memorandum.

Consideration of these documents has provided a welcome opportunity to research and reconsider the general field of attorney-client privilege, aided as I have been by the extensive briefs of so many learned counsel. This privilege embraces the oldest and still most widely and willingly accepted confidential communication known to the law and as such much has been written on the subject and much thought has been given to the application of its ancient basic principles. After reading through most of the voluminous writings relating to the privilege in general, I find that few judges or legal scholars seem to have had occasion to consider the privilege as it applies to corporations, or for that matter if indeed it should so apply. I myself and from their briefs all counsel herein, have taken for granted or presumed that a corporation is entitled to the privilege. Indeed, as previously noted herein I have granted it in this case. My subsequent research into the problem, however, has failed to indicate any authority for so doing or wherein the courts decided that the privilege should be extended to corporations. Quite to the contrary this research leads me to conclude that a corporation's right to assert the privilege has somewhat generally been taken for granted by the judiciary, myself included, without a proper reliance on stare decisis or the promulgation anywhere of record of a clear legal analysis of the issues involved. In those federal and state cases where the attorney-client privilege has been taken for granted as having been extended to a corporate client, and parenthetically I might add that the number of such cases is far fewer than one might be led to suspect, the courts have significantly and completely omitted discussion of the basic issue in their opinions.

The Supreme Court in United States v. Louisville and Nashville Railroad Co., 236 U.S. 318, 35 S.Ct. 363, 59 L.Ed. 598 did seem to speak in favor of the attorney-client privilege relative to a railroad corporation. However, the issue was not squarely placed before the Court, and in any event was not discussed and certainly not decided. The Court did discuss the scope and extent of a Congressional investigation statute sought to be enforced by the government against the railroad company. In extending limited application to the statute it held that correspondence per se was not intended to be included within the ambit of the statute. It therefore naturally followed that attorney-client correspondence was not subject to investigation. As a matter of fact, all correspondence, not only that between attorney and client, was held not subject to investigation. In an otherwise somewhat lengthy opinion the Court devoted only one small paragraph to the mention of the attorney-client privilege. It observed that the government's brief had not even placed this question in issue, and in casually acknowledging the existence of the privilege cited two cases; Connecticut Mutual Life Insurance Co. v. Schaefer, 94 U.S. 457, 24 L.Ed. 251 and Blackburn v. Crawfords, 3 Wall. 175, 18 L.Ed. 186.

A reading of the Connecticut Mutual case shows the Court therein to have extended the privilege to an individual and not even to have considered applying the privilege to a corporate client. The Blackburn decision accepted the testimony of the attorney notwithstanding the assertion of the privilege, and further, the Court was there also considering an individual and not a corporate client. Both of these cases contain a good general discussion of the attorney-client privilege but neither case ever considers the possibility of a corporation being the client.

Therefore, having after much study and consideration personally come to the point of questioning the application of the attorney-client privilege to a corporate client, I now suggest to the profession and adopt as the law of this case that a corporation is not entitled to make claim to the privilege for the following reasons.

The attorney-client privilege, analogous to the privilege against self-incrimination, is historically and fundamentally personal in nature. Both privileges have their genesis in the common law, and both still exist independently of statute. (The 5th Amendment to the Constitution merely guarantees the self-incrimination privilege against legislative action). Although at earliest common law the...

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19 cases
  • Grand Jury Investigation, In re, 78-2040
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 1, 1979
    ...have argued that the test's protection is inadequate, no one yet has criticized it as overly generous. But see Radiant Burners, Inc. v. American Gas Ass'n,207 F.Supp. 771 (privilege is not available at all to corporate clients), Aff'd on reconsideration, 209 F.Supp. 321 (N.D.Ill.1962), Rev'......
  • Consolidation Coal Co. v. Bucyrus-Erie Co.
    • United States
    • Supreme Court of Illinois
    • February 2, 1982
    ...when one Federal court had held that the attorney-client privilege was not available to corporations (Radiant Burners, Inc. v. American Gas Association (N.D.Ill.1962), 207 F.Supp. 771, aff'd on reconsideration (N.D.Ill.1962), 209 F.Supp. 321, rev'd (7th Cir. 1963) (en banc ), 320 F.2d 314, ......
  • Garner v. Wolfinbarger
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 29, 1970
    ...52 (1956); Belanger v. Alton Box Board Co., 180 F.2d 87 (7th Cir. 1950). A decision to the contrary, Radiant Burners, Inc. v. American Gas Ass'n, 207 F.Supp. 771 (N.D.Ill.1962) was reversed by the Seventh Circuit, 320 F.2d 314 (7th Cir.), cert. denied, 375 U.S. 929, 84 S.Ct. 330, 11 L.Ed.2d......
  • E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc.
    • United States
    • Court of Appeals of Maryland
    • September 1, 1997
    ...... attorney and not that of the client." Radiant Burners, Inc. v. American Gas Association, 207 ......
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2 books & journal articles
  • The Legal Advice Requirement of the Attorney-client Privilege: a Special Problem for In-house Counsel and Outside Attorneys Representing Corporations - Grace M. Giesel
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 48-3, March 1997
    • Invalid date
    ...Gas Ass'n, 320 F.2d 314, 322-23 (7th Cir.), cert, denied, 375 U.S. 929 (1963). But see Radiant Burners, Inc. v. American Gas Ass'n, 207 F. Supp. 771 (N.D. 111.), adhered to, 209 F. Supp. 321 (N.D. Ill. 1962), rev'd, 320 F.2d 314 (1963), cert, denied, 375 U.S. 929 (1963). See also restatemen......
  • The Civil Litigator
    • United States
    • Colorado Bar Association Colorado Lawyer No. 10-3, March 1981
    • Invalid date
    ...of Civil Procedure. NOTES _____________________ Footnotes: 1. Upjohn Company v. United States, 49 U.S.L.W. 4093 (Jan. 13, 1981). 533 2. 207 F.Supp. 771 (N.D.Ill. 1962), rev'd, 320 F.2d 314 (7th Cir.), cert. denied, 375 U.S. 929 (1963). 3. For additional background, please refer to the artic......

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