Johnson v. Johnson and Bell, LTD.
7 N.E.3d 52
Ill. App. Ct.2014Background
- Johnson sued Target in federal court for injuries from a slip-and-fall; Target was represented by Johnson & Bell attorneys Burke and Rose. The case proceeded to trial and resulted in a defense verdict, affirmed on appeal.
- A joint final pretrial order filed in the federal case included appendices with exhibits and deposition transcripts; some attached documents (unknown to Johnson at the time) contained her SSN, DOB, financial and medical information, and references to a minor.
- During the appeal, Johnson moved in district court and the Seventh Circuit to seal and redact the documents and sought sanctions; courts granted redaction/sealing but denied sanctions.
- Johnson then sued in Illinois state court against Target, Johnson & Bell, Burke, and Rose for invasion of privacy, negligence, negligent infliction of emotional distress, and breach of written and oral contract based on the failure to redact/seal.
- Defendants moved to dismiss under 735 ILCS 5/2-619, arguing the absolute litigation privilege, res judicata/collateral estoppel, and that violations of federal rules do not create a private right of action; the trial court dismissed with prejudice. Johnson appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the absolute litigation privilege bars Johnson's invasion-of-privacy claim | Privilege does not apply because defendants improperly published private data; privacy tort stands despite litigation context | Absolute privilege protects communications and filings in judicial proceedings | Court: Privilege applies to invasion-of-privacy claim; claim barred |
| Whether privilege bars negligence, negligent infliction of emotional distress, and contract claims | Recasting the misconduct as nondefamation claims avoids the privilege | Allowing such recasting would eviscerate the privilege; absolute privilege extends to protect prior-litigation conduct | Court: Privilege bars these claims too; dismissal affirmed |
| Whether federal courts' denial of sanctions and redaction orders precludes state action (res judicata / collateral estoppel / improper collateral attack) | Federal courts’ refusal to sanction leaves a wrong remedyless in federal forum — state court action appropriate | Plaintiff already litigated the matter in federal court; the federal courts heard and resolved redaction/sealing requests; state suit is an improper attempt to relitigate | Court: Claims relate to prior litigation and were addressed in federal court; state action improperly attacks prior proceedings and is barred |
| Whether violation of Federal Rules (e.g., Fed. R. Civ. P. 5.2) creates a private cause of action | Failure to follow Rule 5.2 caused actionable harm and supports state-law claims | A breach of federal procedural rules does not itself create a private right of action in state court | Court: No private cause of action based on federal rule violation; not a basis to avoid privilege/barriers |
Key Cases Cited
- McGrew v. Heinold Commodities, Inc., 147 Ill. App. 3d 104 (1986) (absolute-defamation privileges apply to invasion-of-privacy claims)
- Thompson v. Frank, 313 Ill. App. 3d 661 (2000) (absolute litigation privilege is an affirmative defense appropriately raised in a section 2-619 motion)
- McNall v. Frus, 336 Ill. App. 3d 904 (2002) (negligence claims can be barred by the absolute litigation privilege)
- Zdeb v. Baxter Int'l, 297 Ill. App. 3d 622 (1998) (limits on extending absolute privilege to other torts; court distinguished in this case)
- Kurczaba v. Pollock, 318 Ill. App. 3d 686 (2000) (privilege may not apply where defendants disseminate materials to third parties outside the litigation)
- Barker v. Huang, 610 A.2d 1341 (Del. 1992) (holding that recasting defamation as other causes should not evade absolute privilege)
- Harris Trust & Savings Bank v. Phillips, 154 Ill. App. 3d 574 (1987) (misconduct in prior litigation must be addressed in that litigation; public policy disfavors collateral attacks)