Radiant Burners, Inc. v. American Gas Association

• Decision Date: 11 October 1962
• Docket Number: No. 57 C 1167.,57 C 1167.
• Citation: 209 F. Supp. 321
• Parties: RADIANT BURNERS, INC., an Illinois corporation, Plaintiff, v. AMERICAN GAS ASSOCIATION, a not-for-profit corporation, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

209 F. Supp. 321

RADIANT BURNERS, INC., an Illinois corporation, Plaintiff, v. AMERICAN GAS ASSOCIATION, a not-for-profit corporation, et al., Defendants.

No. 57 C 1167.

United States District Court N. D. Illinois, E. D.

October 11, 1962.

William J. Friedman, John O'C Fitzgerald, Victor Neumark, Charles Frank Marino, Lee A. Freeman, Richard F. Levy, Robert W. Murphy and Charles W. Houchins, Chicago, Ill., for plaintiff.

Clarence H. Ross, Roland D. Whitman and David C. Baum of Ross, McGowan & O'Keefe, Chicago, Ill., for Peoples Gas, Light and Coke Company and Eskil I. Bjork, Remick McDowell, Bernard H. Wittmann and Daniel Collins.

Haft, Shapiro & Davis, Chicago, Ill., for Sellers Engineering Company.

Jesse Holland, Chicago, Ill., for Allied Gas Co.

Gregory A. Gelderman, Chicago, Ill., for Midcontinent Metal Products Co.

Paul A. F. Warnholtz, Chicago, Ill., for Gas Appliance Service.

James J. Gaughan, Brainard Chapman, Chicago, Ill., for Autogas Co.

Olson, Mecklenburger, vonHolst, Pendleton & Neuman, and Gregory B. Beggs, Chicago, Ill., for Janitrol, Heating & Air-Conditioning.

Mayer, Friedlich, Spiess, Tierney, Brown & Platt, James W. Good, Jr., and Charles K. Bobinette, Chicago, Ill., for American Gas Ass'n.

Robert Hanley, Chicago, Ill., for Northern Ill. Gas Co.

Gallop, Climenko & Gould, New York City, for Worthington Corporation (Mueller Climatrol Division).

Stanton E. Hyer, Hyer, Gill & Brown, Rockford, Ill., Winston, Strawn, Smith & Patterson, Chicago, Ill., Robert Cronin, Isham, Lincoln & Beale, Chicago, Ill., for Central Ill. Elec. & Gas Co.

Lederer, Livingston, Kahn & Adsit, Chicago, Ill., for Florence Stove Co.

Dallstream, Schiff, Hardin, Waite & Dorschel, Chicago, Ill., for North Shore Gas Co. and Roy E. Jones.

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

James D. Porter and Irving W. Zirbel, Milwaukee, Wis., Karl C. Williams, Rockford, Ill., Pope, Ballard, Uriell, Kennedy, Shepard & Fowle, Chicago, Ill., for A. O. Smith Corp.

William J. Winger, Chicago, Ill., for Peoples Gas, Light & Coke Co., Natural Gas Pipeline Co., Texas Ill. Nat. Gas Pipeline, Eskil I. Bjork, Remick McDowell, Bernard H. Wittmann and Daniel E. Collins.

CAMPBELL, Chief Judge.

Pursuant to my order of August 13th permitting the filing of additional briefs on the issue of a corporation's right to claim the attorney-client privilege, both the defendants and the plaintiff have submitted additional briefs for which I am most appreciative. My reading of these briefs, the plaintiff's in support of and the defendants' in opposition to my August 3rd Memorandum and Order, prompts me to make the following additional observations.

I first consider the affirmative arguments advanced by defendants as to why the privilege must or should be extended to a corporation. As to prior judicial decisions and the law of stare decisis I naturally consider first the Supreme Court of the United States. Defendants cite only the case I had already found, cited and considered in my initial research of this issue, resulting in my August 3rd Memorandum. United States v. Louisville and Nashville Railroad Co., 236 U.S. 318, 35 S.Ct. 363, 59 L.Ed. 598. As I have already indicated and for the reasons I therein stated I am still of the belief that the Court in Louisville did not discuss or decide the present issue as to a corporation's right to claim the privilege.

Next, as to our own Seventh Circuit Court of Appeals, defendants cite the case of Belanger v. Alton Box Board Co., 180 F.2d 87. Defendants' brief merely cites the Belanger case, and no more. The brief is conspicuously absent any attempt to show wherein the Belanger case considered our present issue, or for that matter, is absent any attempt to show that the Court in Belanger was specifically considering the attorney-client privilege as distinct from the attorney work product privilege. It is true that Belanger does cite portions of an Illinois case, Dickerson v. Dickerson, 322 Ill. 492, 153 N.E. 740, wherein the Illinois Supreme Court refers to the attorney-client privilege. However, it did not consider a corporation's claim to the privilege, both parties to the Dickerson litigation being individuals.

Defendants' brief contains an additional argument which is appropriately referred to as an argument by analogy. Citing the Seventh Circuit case of Palmer v. Fisher, 228 F.2d 603, wherein the Court granted to an accountant the Illinois "accountant" privilege, Ill.Rev.Stat. Ch. 110½, Sec. 51, they argue that this Court should also apply the attorney-client privilege to corporations. Such arguments by analogy are useful only to the extent that the basic facts and circumstances existing in the pending situation are similar to those existing in the claimed analogous situation. I find little similarity between the facts or the law before the Court in Palmer and the facts and the law presently before me. In Palmer the Court of Appeals was considering a statutory and not a common law privilege. Of even more importance, the language of the Illinois "accountant" statute patently creates just what its title would indicate, a privilege for accountants. On the other hand the attorney-client privilege is a privilege of the client and not that of the attorney. To this extent I would suggest that the "accountant" privilege is somewhat similar in nature to the attorney "work-product" privilege. Finally, the Court in Palmer makes no mention of a corporation's right to claim either privilege.

To support a contention that at common law corporations were entitled to the privilege, defendants' brief cites the case of Bolton v. Corporation of Liverpool, 1 My. and K. 88, 39 Eng.Rep. 614 (1833). In the first instance, the decision date of 1833 precludes it from being considered as a part of our common law. Secondly, I am of the opinion that a careful reading of the case discloses that it does not concern itself with the attorney-client privilege. Defendants also cite another English decision decided by the same Lord Chancellor some two weeks prior to Bolton, Greenough, v. Gaskell, 1 My. and K. 98, 39 Eng.Rep. 618 (1833). Defendants correctly represent and describe the Greenough case as concerning itself with the attorney-client privilege as it applies to an individual, there being no mention in the case of a corporation's right to claim the privilege. In Greenough the Court was primarily concerned with a possible restriction or limitation of the attorney-client privilege, namely that it should extend only to information obtained with reference to contemplated or existing legal proceedings. A great portion of the Lord Chancellor's opinion is devoted to the task of making it clear that the privilege is in no way restricted to matters involved in contemplated or pending litigation. With this additional observation of Greenough in mind I now suggest a reanalysis of the Bolton case, a decision handed down by the same judge some two weeks later. In concluding the Bolton decision the Lord Chancellor states: "I am therefore, upon the whole, of the opinion that cases laid before counsel in the progress of a cause, and prepared in contemplation of, and with reference to an action or suit, cannot be ordered to be produced for the purpose of that action or suit." To justify and explain the Lord Chancellor's sudden stress on the importance of a pending suit, an element which just two weeks prior he had clearly stated was not a requirement to make claim to the attorney-client privilege, I would suggest that a thorough reading of the Bolton decision indicates the privilege considered and granted was that which is now known as the attorney "work product" privilege and not the attorney-client privilege.

Defendants' brief does cite cases (some 43 in all) wherein various courts have apparently granted corporations the attorney-client privilege. But, with commendable candor, defendants' brief also admits to the accuracy of a statement in my prior Memorandum, namely, that those courts which have granted corporations the privilege have done so without a consideration of the present basic issue, that of a corporation being in the first instance entitled to claim the privilege. As to courts having granted corporations the privilege in the past, defendants need cite nothing more than my own actions and earlier statements and rulings in this very case. As I indicated in my first Memorandum, I myself have in the past presumed its existence and granted the...