Center Partners, Ltd. v. Growth Head GP, LLC
2012 IL 113107
| Ill. | 2012Background
- Defendants Westfield, Rouse, and Simon negotiated to buy Rodamco North America in 2002 and formed Urban Shopping Centers, L.P. with Head as general partner; plaintiffs are minority/derivative Urban partners.
- During negotiations, defendants shared privileged legal views and documents regarding the transaction and the proposed synthetic partnership structure.
- Plaintiffs alleged fiduciary and contractual breaches by defendants related to Urban’s opportunities and growth under the synthetic partnership.
- Plaintiffs moved to compel production of documents containing privileged communications; the circuit court ordered production as to disclosed items.
- Defendants argued the privilege covered those communications under common interest and that extrajudicial disclosures should not trigger broad waiver; the circuit court’s order prompted contempt findings and appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether extrajudicial disclosures trigger subject matter waiver | Plaintiffs urge waiver applies to extrajudicial disclosures of privileged material | Defendants contend waiver should apply only to judicial disclosures and not extrajudicial ones | Waiver does not apply to extrajudicial disclosures not used to gain litigation advantage |
| Whether deposition testimony placed disclosures at issue in litigation | Waiver may occur if witnesses testified about privileged advice to support defenses | No waiver from deposition questions where privilege was asserted | No waiver found from deposition testimony; privilege preserved for those communications |
| Scope of any implied waiver if waiver occurred | If waiver occurred, scope should cover all communications on same subject | Waiver, if any, should be limited and not sweep undisclosed communications | No broad implied waiver; if any waiver occurred, its scope is limited to the same subject matter; no automatic extension to all related communications |
Key Cases Cited
- In re Keeper of the Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16 (1st Cir. 2003) (extrajudicial disclosures not used to gain litigation advantage do not broaden waiver)
- Von Bulow, 828 F.2d 94 (2d Cir. 1987) (extrajudicial disclosures do not expand waiver absent later reliance in litigation)
- In re Grand Jury January 246, 272 Ill. App. 3d 991 (Ill. App. 1995) (subject matter waiver limited to the disclosed portion balanced with fairness)
- In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989) (disclosure of confidential communications in audits can affect waiver analysis)