2021 IL App (1st) 192410
Ill. App. Ct.2021Background
- In 2011 Cascade Builders hired Rugar (subcontractor) to work on the Weatherups’ NY home; the Weatherups later alleged damage and made an insurance claim.
- Interstate (Cascade’s insurer) paid the Weatherups $590,749.04 in 2014; the Weatherups executed a release and assigned to Cascade and Interstate any claims against third parties (including Rugar and Utica).
- Cascade sued Rugar, Utica, and others in New York; Utica obtained a New York subpoena duces tecum directed to Interstate for Interstate’s entire claim/subrogation file and certified policies.
- Utica submitted the foreign subpoena to an Illinois clerk under the Uniform Interstate Depositions and Discovery Act (UIDDA); Interstate moved in Illinois to quash, asserting overbreadth and various privileges (attorney-client, work product, common interest, insured–insurer).
- The Illinois circuit court conducted an in camera review, required production of most documents, and withheld 92 pages as privileged, applying Illinois law; Utica appealed arguing New York law should control and require broader disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Choice-of-law for motions to quash a foreign subpoena under the UIDDA | Utica: New York law (law of the issuing forum) should govern and would require production of the full claim file | Interstate: Illinois law governs motions filed in Illinois under UIDDA; Illinois choice-of-law rules apply | Court: UIDDA requires applications to comply with the law of the discovery state (Illinois); Illinois law applies |
| Discoverability of an insurer’s claim file / privileged materials | Utica: NY precedent makes insurer claim files presumptively discoverable, so the 92 pages should be produced | Interstate: Remaining documents are protected by Illinois privileges (and some NY authority also recognizes privilege for litigation files) | Court: Utica conceded the documents are privileged under Illinois law; affirmed withholding |
| Burden to show a conflict of law that would change the outcome | Utica: Argued NY law would produce a different result, justifying application of NY law | Interstate: Utica must show a true conflict that would alter the outcome; failure to provide the actual withheld docs prevents that showing | Court: Utica failed to meet burden and did not supply the withheld materials for appellate review; presumed circuit court order correct; affirmed |
Key Cases Cited
- Feltmeier v. Feltmeier, 207 Ill. 2d 263 (Ill. 2003) (standard of review for statutory interpretation and de novo review)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (Ill. 1984) (appellant must provide an adequate record; absent record, presume trial court order correct)
- Levy v. Markal Sales Corp., 311 Ill. App. 3d 552 (Ill. App. 2000) (committee comments to a uniform act are persuasive when interpreting the act)
- McClier Corp. v. United States Rebar, Inc., 885 N.Y.S.2d 599 (N.Y. App. Div. 2009) (insurer claim-file documents prepared for litigation are immune from disclosure)
- DiNova v. Sunnyview Hospital & Rehabilitation Center, 517 N.Y.S.2d 410 (Sup. Ct. 1987) (insurer file prepared in contemplation of litigation receives conditional immunity from discovery)