Selby v. O'Dea
90 N.E.3d 1144
| Ill. App. Ct. | 2017Background
- State Farm and attorney James M. O’Dea were codefendants in a putative class action alleging a scheme to obtain fraudulent default judgments in subrogation cases; plaintiffs asserted abuse of process, civil conspiracy, and malicious prosecution against State Farm and O’Dea.
- After the class complaint, State Farm and O’Dea entered a written joint‑defense/confidentiality agreement and held postcomplaint joint conferences with counsel.
- Plaintiffs served discovery seeking whether State Farm notified O’Dea of irregularities; State Farm asserted attorney‑client, work‑product, and a “joint defense” privilege, acknowledging privileged discussions occurred.
- The trial court recognized a joint‑defense/common‑interest protection and denied discovery of postcomplaint communications without requiring a privilege log or an in camera review.
- The trial court dismissed plaintiffs’ abuse‑of‑process claim and later granted summary judgment to State Farm on civil‑conspiracy and malicious‑prosecution claims; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Illinois recognizes a common‑interest (joint‑defense) exception to waiver of attorney‑client and work‑product privileges | Selby et al.: Illinois has not recognized such an exception; Waste Management differs and does not provide the protection State Farm claims | State Farm: Illinois should recognize the common‑interest/joint‑defense exception (citing common law and Restatement) | Court: Illinois recognizes a common‑interest exception to the waiver rule; trial court correctly recognized it |
| Scope of the doctrine — must parties be perfectly aligned? | Selby et al.: Parties must be fully aligned to claim protection | State Farm: Only a shared litigation interest is required | Court: Parties need not be perfectly aligned; communications must further a common litigation interest |
| Which communications are protected (attorney‑to‑attorney, party‑to‑other’s attorney, party‑to‑party with counsel present, etc.) | Selby et al.: Narrow protection; question whether party‑to‑party or party‑to‑other’s lawyer communications qualify | State Farm: Broad protection for communications exchanged pursuant to the joint‑defense agreement | Court: Protects communications in furtherance of the common interest: (1) attorney→attorney, (2) party→other’s attorney, (3) party→own attorney in presence of other counsel, and (4) party→party with counsel present |
| Whether the trial court properly refused an in camera, communication‑by‑communication review and privilege log | Selby et al.: Trial court’s blanket protection and refusal to require a log prevented meaningful review and prejudiced plaintiffs | State Farm: Postcomplaint communications fall entirely within the common‑interest protection; detailed log or in camera review unnecessary | Court: Remanded — trial court must require a Rule 201(n) privilege log and perform an in camera, communication‑by‑communication review to determine which specific communications are protected |
Key Cases Cited
- Waste Mgmt., Inc. v. Int’l Surplus Lines Ins. Co., 144 Ill. 2d 178 (Ill. 1991) (articulates Illinois common‑interest doctrine in insurer/insured context and limits scope to shared interests)
- McPartlin, 595 F.2d 1321 (7th Cir. 1979) (recognizes protection for pooling privileged information among codefendants for a common defense)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (privilege protects communications, not underlying facts)
- Jaffee v. Redmond, 518 U.S. 1 (U.S. 1996) (discusses federal privilege policy and history relevant to proposed codification)
- Brunton v. Kruger, 2015 IL 117663 (Ill. 2015) (explains common‑interest doctrine’s roots in dual representation)
- Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107 (Ill. 2012) (sets standard that existence of privilege is reviewed de novo)