2022 IL App (1st) 210268
Ill. App. Ct.2022Background
- Plaintiff Darrell Horn, a Metra locomotive engineer, sued under the Federal Employers’ Liability Act after a work-seat failure; during discovery Metra disclosed that it had surveillance of Horn conducted by Subrosa and produced surveillance videos but redacted Subrosa’s investigation reports.
- Horn subpoenaed Subrosa’s full file; Metra moved to quash and asserted the consultant/work-product protection of Illinois Supreme Court Rule 201(b)(3).
- The trial court reviewed the materials in camera and ultimately ordered production of unredacted Subrosa documents; Metra sought reconsideration and invoked the Illinois Supreme Court’s decision in Dameron.
- The trial court denied reconsideration, held Metra in “friendly contempt” for refusing to produce the documents, and imposed a monetary sanction; Metra appealed.
- The appellate panel framed the legal questions around (1) whether Subrosa qualified as a Rule 201(b)(3) consultant and (2) whether Horn showed the ‘‘exceptional circumstances’’ necessary to overcome that privilege, including whether objective materials (videos/photographs) are protected.
- The court applied Dameron and related precedent, reversed in part, vacated the contempt finding, and remanded—holding Subrosa is a Rule 201(b)(3) consultant, Rule 201(b)(3) protects both a consultant’s impressions and the objective facts informing them, and Horn failed to show exceptional circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Subrosa is a "consultant" under Ill. Sup. Ct. R. 201(b)(3) and partial disclosure waives the privilege | Horn: Partial disclosure of videos/photos and Subrosa’s identity shows Subrosa is not a privileged consultant and waives protection for the rest of the file | Metra: Subrosa was retained in anticipation of litigation and qualifies as a consultant; partial factual disclosure (videos) is not the same as disclosing consultant opinions/reports | Held: Subrosa is a consultant under Rule 201(b)(3); partial disclosure of underlying media does not alone waive the consultant privilege (Dameron governs) |
| Whether Rule 201(b)(3) protects objective factual materials (e.g., surveillance videos/photos) and consultant summaries | Horn: Objective facts and recordings should be discoverable; prior appellate cases (Shields, Neuswanger) support disclosure of videotapes | Metra: Rule 201(b)(3) protects both consultant impressions and the factual data informing those impressions; Shield/Neuswanger are no longer controlling after Dameron | Held: Rule 201(b)(3) protects both consultant opinions and the objective data underlying them; Shields and Neuswanger were effectively overruled by Dameron |
| Whether Horn demonstrated "exceptional circumstances" making disclosure impracticable to obtain by other means | Horn: He cannot recreate a factual record of his daily activities and needs Subrosa’s summaries to avoid surprise at trial | Metra: Horn can obtain facts from available sources (his memory, the already-produced videos); Horn has not met the burden to show impracticability | Held: Horn failed to demonstrate exceptional circumstances; disclosure not required; contempt finding vacated |
Key Cases Cited
- Dameron v. Mercy Hospital & Medical Center, 2020 IL 125219 (Ill. 2020) (Rule 201(b)(3) protects both consultant opinions and the factual data informing them; burden on requesting party to show exceptional circumstances)
- Shields v. Burlington Northern & Santa Fe Ry., 353 Ill. App. 3d 506 (Ill. App. Ct. 2004) (earlier appellate holding that videotapes by consulting experts were discoverable) (disapproved by Dameron)
- Neuswanger v. Ikegai America Corp., 221 Ill. App. 3d 280 (Ill. App. Ct. 1991) (similar pre-Dameron appellate authority holding certain consultant-created videotapes discoverable) (disapproved by Dameron)
- Wiker v. Pieprzyca-Berkes, 314 Ill. App. 3d 421 (Ill. App. Ct. 2000) (holding a videotape not used as evidence need not be disclosed under consultant rule)
- Reda v. Advocate Health Care, 199 Ill. 2d 47 (Ill. 2002) (contempt finding enforcing discovery order is appealable)
- Norskog v. Pfiel, 197 Ill. 2d 60 (Ill. 2001) (general rule that discovery orders are not usually appealable)
- Velarde v. Illinois Central R.R. Co., 354 Ill. App. 3d 523 (Ill. App. Ct. 2004) (discussing admissibility and notice issues for photographic/video evidence)