Selby v. O'Dea
90 N.E.3d 1144
Ill. App. Ct.2018Background
- State Farm retained attorney James O’Dea to pursue subrogation suits; several defendants (Selby, Young, Lopez, Scheiwe/Polk) later filed a putative class action alleging a scheme to obtain fraudulent default judgments and other misconduct.
- Plaintiffs sued State Farm for abuse of process, civil conspiracy, and malicious prosecution; the trial court dismissed abuse-of-process claims and granted summary judgment for State Farm on conspiracy and malicious-prosecution counts.
- During litigation State Farm and O’Dea entered a written joint-defense/common-interest agreement and held postcomplaint joint conferences involving both clients and counsel; State Farm refused certain discovery about those communications asserting attorney-client, work-product, and a “joint defense” privilege.
- The trial court recognized a joint-defense privilege (common-interest exception to waiver) and denied discovery of postcomplaint communications without requiring a privilege log or in camera review.
- On appeal the court considered whether Illinois recognizes the common-interest exception to the waiver rule, the scope of protected communications, and whether the trial court erred in discovery sequencing and protective order rulings.
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 | Illinois has not adopted a separate joint-defense doctrine; Waste Management is different and does not support State Farm’s claim | Illinois should recognize the common-interest exception; it follows Waste Management principles and national authority (Restatement/Uniform Rules) | Court holds Illinois recognizes the common-interest exception to waiver (joint-defense/common-interest rule) |
| Whether parties must be perfectly aligned on all issues to invoke the doctrine | Parties must be aligned; future or partial conflicts defeat protection | Perfect alignment not required; protection applies where communications further a shared litigation interest | Held that complete alignment is not required; communications must further the common interest |
| Scope of protected communications (which statements qualify) | State Farm limited protection to communications that “involved counsel”; plaintiffs sought disclosure of communications between State Farm and O’Dea | State Farm: protects (1) lawyer-to-lawyer, (2) party-to-other’s lawyer, (3) party-to-own lawyer in presence of other counsel, and (4) party-to-party communications with counsel present | Court adopts prevailing view and lists these four categories as potentially protected; protection is limited to communications made in furtherance of the common interest |
| Whether trial court properly denied privilege log/in camera review and entered dispositive rulings without document-by-document review | Plaintiffs: trial court erred; need a privilege log and in camera review to assess whether each communication is protected | State Farm: entire set of postcomplaint communications falls within doctrine so further Rule 201(n) log/in camera review unnecessary | Court affirms recognition of doctrine but remands for Rule 201(n) privilege log and in camera, communication-by-communication review; vacates dismissal and summary judgments as premature pending that review |
Key Cases Cited
- Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178 (Ill. 1991) (explains Illinois common-interest doctrine in insurer-insured context and scope limits)
- McPartlin, 595 F.2d 1321 (7th Cir. 1979) (Seventh Circuit endorses joint-defense protection for pooling information among codefendants)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (distinguishes privileged communications from discoverable underlying facts)
- Knuckles, 165 Ill. 2d 125 (Ill. 1995) (extends attorney-client privilege to communications with nontestifying mental-health consultant)
- Knippenberg, 66 Ill. 2d 276 (Ill. 1977) (protects communications with defense investigator as within privilege umbrella)
- Jaffee v. Redmond, 518 U.S. 1 (U.S. 1996) (privilege development and federal privilege rule history referenced)
- Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 57 N.E.3d 30 (N.Y. 2016) (discussion of common-interest exception as an exception to waiver rather than a standalone privilege)