*1 rеversed, Page County circuit of Du judgment of the remanded. cause is Reversed and remanded. JJ., JOHNSON,
McLaren and GILLERAN concur. PRESKILL, LAMA,Plaintiff-Appellant, v. DAVID GRACE Defendant-Appellee.
Second District No. 2 — 03—1362 Opinion filed November *2 BOWMAN,J., dissenting. Palermo,
Edmund J. Scanlan and Group, Mario C. both of Scanlan of Law Chicago, appellant. for Benjoya, Reding, Strand, Marc E Tami J. Morgan Cassiday, M. of all Gloor, Chicago,
Schade & appellee. of for JUSTICE CALLUM delivered the of opinion the court: Plaintiff, Lama, Grace a appeals contempt imposed against order her аnd her attorney, Scanlon, Edmund J. they when refused produce documents that the trial court ordered them to turn over. Plaintiff argues that protected by documents are attorney- client privilege reasons, and are not For following discoverable. we affirm judgment the trial court’s the contested are not documents protected by contempt but we vacate the order. 15, May 2001, plaintiff
On complaint filed a alleging defendant, Preskill, M.D., David negligently performed a March 1999, laparоscopy of an cyst. According during ovarian to plaintiff, laparoscopy, negligently defendant retroperitoneum, incised the which addition, require emergency In laparotomy. caused plaintiff alleged negligence she first became aware on June plaintiffs
Defendant all of medical records bills. subpoenaed under complaint Defendant also moved to dismiss the section (735 619(a)(5) (the Code) of the Code of Civil Procedure ILCS 5/2— 2— (West 2000)). 619(a)(5) motion, argued In defendant pеriod suing two-year cause of action was barred 13—212 provided of the Code physician, which section (West 2000)). defendant, According plaintiffs cause ILCS 5/13—212 years March or after of action became time-barred after two motion, he claimed that laparoscopy. support time allegedly negligent of defendant’s conduct at the knew emergency surgical laparoscopy required because she additional procedures for stabilization. trial denied defendant’s motion
On October regarding a question It found that of fact existed prejudice. without alleged negligence. became aware of summary As judgment. defendant moved for August On motion, plaintiff’s deposition relied on for the support alleged negligence that she knew of the testimony establish During deposition, plaintiff testified laparoscopy. time Yet, performed outpatient on an fol- laparoscopy was to be basis. *3 lowing hospitalized in the intensive care unit and surgery, she was thought injuries her days. Plaintiff stated that she first for five passing heard in might wrongfully caused when she have been However, plaintiff was longer perform surgeries. could defendant no made, exactly the comment about defendant was unable to recall when time, or made the comment. where she was at the who that, days after stated three Additionally, reply, in his defendant affidavit, Via an her medical records. surgery, plaintiff requested that, days four averred on March Terrence Carden plaintiffs hospitalized, while was still surgery after the and brought William, him on behalf. William husband, plaintiffs met with meeting. plaintiffs medical records argued Plaintiff to strike Carden’s affidavit. Plaintiff moved they the matters give to disclose permission William did not Carden disclosure, thus, and, by making the meeting, during their discussed Rules of Profes and 1.9 the Illinois violated Rules 1.6 Carden had 1.9)). Determining that 1.6; 2d R. Ill. 2d R. 134 Ill. sional Conduct information, the court any privileged did not reveal Carden’s affidavit summary granted strike. It also plaintiffs motion to denied existed so, no issue of fact the court held that doing motion. In judgment regarding injury knew of her she needed the because emergency surgery following laparoscopy William met with malpractice Carden, attorney, shortly emergency surgery. after the judgment.
Plaintiff moved the court to summary reconsider the affidavit, Via an William admitted he that met Carden on March with he but averred that he had never told about the meeting during or what was meeting. discussed The trial court granted plaintiffs reconsider, concluding motion to question that а fact existed regarding whether was aware of William’s meet- ing with Carden. The court summary judgment. vacated the
On July subpoenaed defendant appear Carden to for a deposition produce documents, including William’s client file. Plaintiffs wrote to Carden and told him that William were waiving any attorney-client privilege relating to Wil- meeting liam’s with replied Carden. Carden comply that he would subpoena providing with the the documents to the court for inan camera review.
On August defendant an in insрection moved for camera documents Carden’s requested that, client file. Defendant fol- lowing review, provided court’s he be with the relevant documents. The court conducted its review. subsequent On its own motion at a hearing, the court found that some documents in Carden’s file were relevant and they ordered copied be and delivered to counsel to ensure that counsel was aware of the file’s contents.
Defendant moved for the relevant documents to be turned In оver. memorandum, argued that, defendant by invoking discovery rule to toll the period, plaintiff placed at issue the matter of when she and, discovered her injury thereby, attorney- waived the client privilege to addition, Carden’s documents. defendant insisted that William plaintiffs agent and, acted as therefore, plaintiff was charged knowledge with agent’s of her communications.
In response, plaintiff argued that she was unable to waive an party, William, between a third and Carden. Furthermore, she insisted that she was not attempting to use the privileged documents to establish rule applied her case and claimed that she had not brought into the lawsuit the is- Instead, sue when she learned of her injury. she contended that raised the asserting as an affirmative defense that *4 her untimely. claim was As for defendant’s contention that William acted as agent, she asserted that there nowas evidence that she authorized William to consult with an on her behalf. 2003, 9,
At an October hearing, granted the court the motion and plaintiff ordered that turn over the relevant documents from Carden’s 17, by Acknowledging parties disagreed file October 2003. issue, plaintiff the matter at the court found that placed about who by filing period her after the limitations complaint raised the issue Moreover, and, thereby, discovery rule. the court noted invoking plaintiff signed the authorization for the medical records plaintiff meeting took to his with Carden. The court held William give it her attorney-client privilege, ordered hаd waived relating plaintiffs discovery her Carden’s documents injury.
Maintaining protected by attorney- the documents were On comply with the court’s order. privilege, plaintiff client did not plaintiff turn over the docu- October the court ordered that in Plaintiff still did contempt. or be found ments October plaintiff contempt to find in comply. not Defendant moved the court immediately appeal To and award sanctions. allow contempt her in found discovery the court 304(b)(5) Supreme Court Rule and аwarded fines. Pursuant $100 304(b)(5)), interlocutory appeal. 2d filed this 111. R. above, interlocutory appeal after As initiated noted order, discovery held trial court’s was comply refused to with the she are not Ordinarily, discovery orders contempt, and was sanctioned. thus, 2d and, Norskog Pfiel, v. 197 Ill. appealable. final (2001). cor may be used to However, contempt proceedings test Therefore, Ill. 2d Norskog, order. discovery rectness of a violating imposed for contempt sanctions party appeals when a order, finding necessar contempt our of the pretrial discovery review it based. Nors discovery order on which was ily requires review of Ill. 2d at 69. kog, 197 212(a) Code, a must sue a
Under section 13— “on after date which injuries years no more than two physician diligence knew, should through or the use of reasonable the claimant 212(a) injury existed. 735 ILCS known,” that his or her have 5/13— 2000). (West the commence discovery postpones rule The common-law suf injured possesses period person until the of the limitations ment put a injury and its cause to concerning his her ficient information or & Weis inquiries. Swann to make further person on notice reasonable Associates, Inc., Ill. 3d App. Ltd. v. Meed kopf during her negligence occurred plaintiff stated that complaint, her aware that “first became 1999, laparoscopy but she March June, on or about the 28th wrongfully caused injuries were However, May unless complaint on filed the 1999.” She rule, claim plaintiff’s was tolled period 23, 2001. timе-barred on March became
305 that she that, by complaint in the alleging maintains Defendant 1999, plaintiff waived the injury until June did not discover her concerning privilege as to confidential communications attorney-client appeal, agreed. court On injured. knew The trial she she was when by holding she the trial erred plaintiff argues that court and, thereby, injury of her the issue of when she knew introduced concerning communications attorney-client privilege waived defendant cre she insists that contrary, to that issue. To relevant asserting as an affirmative defense her by ated the issue question of whether untimely. de novo complaint was We review any exception Sterling or thereto exists. attorney-client privilege an PaineWebber, Inc., App. UBS 336 Ill. 3d Management, Finance L.P. v. (2002). 442, 446 made communication attorney-client privilege protects
The the client by professional legal a client to a advisor where confidence Kahn, & Ltd. v. legal seeks advice from that advisor. Fischel van “ (2000). Gallery, Inc., 579, purpose Ill. 2d ‘The Straaten 189 584 encourage full and attorney-client privilege promote legal by removing a frank consultation between client and advisor ” Inc. compelled Management, fear of disclosure of information.’ Waste Co., 178, Lines 144 Ill. 2d Surplus v. International Insurance 190 Co., Ill. (1991), quoting Bucyrus-Erie v. 89 2d Consolidation Coal Co. (1982). however, The is not conditions 117-18 without and should be its “strictly possible confined within narrowest limits.” 2d at Management, Waste 144 Ill. 190. protections
The affordеd can be Kahn, 2d waived the client. Fischel & 189 Ill. at 584. The waiver Controls, express implied. Pyramid can be either or Inc. v. Siemens (N.D. 1997). Automations, Inc., 272 Ill. Industrial F.R.D. privilege may be claims impliedly waived when client asserts or put legal defenses that his or her with the advisor at communications Tracks, litigation. Inc., App. Ill. Shapo issue in the v. Tires ’N 3d (2002). words, implied In other an waiver occurs “where a case, party voluntarily injects legal either a or into the factual requires the truthful of which an resolution examinаtion Controls, at Pyramid confidential communications.” 176 F.R.D. example, type This is referred to an “at issue” For waiver as waiver. attorneys lawyers sue malpractice, when clients their for or when sue fees, clients for applies their a waiver earlier communications parties. App. 336 Ill. 3d at 394. Shapo, between now-adversarial that, case, personally note in this claims the We However, as attorney-client privilege for Carden’s documents. belongs client, possessеd the her husband William privilege regarding meeting Carden, with unless act William was an ing agent as plaintiff. for When an agent communicates with principal’s agent client, attorney, speaks as principal, or protected his or are though communications to the same extent as principal was speaking. See Marietta First & v. National Bank Co. Barrington, App. Trust 173 Ill. Generally, 3d communications legal through made serving advisor one as agent Manella, of the client privileged. will be 173 Ill. App. 3d Carden, As hospitalized remained met William with attorney-client documents, her to assert privilege for Carden’s agent William must have acted as her during meeting.
Here, determining privilege for waived, documents had been the trial implicitly found that Wil liam was agent. conclusion, The record supports *6 plaintiff does not it dispute appeal. on met with four William Carden plaintiffs days surgery, plaintiff hospitalized. after while was Plaintiff hospital prepare records, authorized the to her medicаl and William Moreover, those took records with him to the in meeting with Carden. affidavit, Carden stated that him plaintiffs William met with on behalf. William’s counteraffidaivt does this ac not refute fact. We will cept Hayes as true unrefuted v. Burlington facts. Northern & Santa Fe Co., Ry. 323 Ill. App. Consequently, 3d 479 ad we now attorney-client privilege dress whether the waived. was argues defendant, Plaintiff plaintiff, that raised the issue of plaintiff injury by knew of her asserting affirmative defense complaint untimely. agree. In her complaint, wаs We do not anticipating plaintiff alleged timeliness would be an limitations tolled period injury was because she first learned of her lawsuit, in June 1999. at the Consequently, plaintiff onset of the raised injury the issue whether she knew or should have known of her prior result, to the end of As a period. plaintiff the limitations voluntarily injected legal the case the issues into factual and of when any attorney-client she learned of her thus injury. She waived regarding agent’s agree communications with Carden. We with relаting trial court that defendant was entitled to Carden’s documents plaintiff her injury. to when learned of similar in In that Pyramid
A
resolution was reached
Controls.
case,
plaintiff
alleging
sued the defendant
in
(the
Act)
violated
Act of 1987
the Franchise Disclosure
(West 1996)) by terminating
Pyra-
franchise in 1995.
ILCS
its
705/27
Controls,
Act,
mid
The attorney, with plaintiffs prior communications its records Pyramid objected attorney-client privilege. based on the plaintiff Controls, plaintiff 271. The ordered the submit 176 F.R.D. at court its attorneys all its from the time of tеrmination communications with Pyramid Controls, F.R.D. at 275. year until one from that date. that, period, by trying to defeat the limitations court concluded put had at issue what communications and advice the plaintiff Controls, 176 F.R.D. prior attorney. Pyramid received from its Reasoning important that those communications were because had become what advice the received after discuss- termination, ing its -with its the circumstances of held had waived Controls, F.R.D. at 275. To Pyramid
those communications. pеriod, determine if the was within the limitations this lawsuit necessary was if the became aware of information resolve in it alleged violation in 1996 or as claimed. Controls, Pyramid 176 F.R.D.at 274. Controls, case, husband, Pyramid plaintiffs acting
As this shortly as agent, met with an after the circumstance Plaintiff sued after the gave occurred that rise to the lawsuit. then rule. As invoked period limitations and invoked the period by alleging she was unaware exception to *7 surgery, of until after whether she met this her claim months result, plaintiff injected is an issue she into the case. As a exception agent’s meeting from privilege has documents her waived Moreover, plaintiff discovery invoked rule to with Carden. because defendant, the truth sue defendant needs this information to ascertain plaintiffs of applies. assertion that rule
Additionally, argues that should affirm the appeal defendant on we (1) grounds on the that trial court’s order to turn over the documents relationship plaintiff attorney-client that an existed did not еstablish (2) Carden, not sought documents did contain William and between (3) communications, meet with Car- plaintiff and did not confidential relationship. we determine den establish a confidential Because waived, not reach these we need was issues. closing, we affirm trial that attorney- court’s decision privilege
client inapplicable documents were ordered produced. Because the trial court the contempt entered order to appellate facilitatе of the and discovery review specifically stated contumacious, behavior was we vacate contempt order. reasons, the foregoing
For the order circuit court of Lake County affirmed, to turn contempt over documents is order vacated, the fines assessed are and the cause is remanded for further proceedings. part
Affirmed in vacated in part; remanded. cause BYRNE, J., concurs. BOWMAN,
JUSTICE dissenting: respectfully I In my opinion, majority’s dissent. ef- decision fectively dissolves the in every case where statute of pleaded limitations is as a defense the client on relies discovery period. rule to overcome the limitations Because placed never with prior communications her at issue as to so her attorney-client waive I do not believe that defendant should be entitled to the contested documents.
The facts are clear that on March performed defendant on a of an laparoscopy cyst. May 2001, plaintiff ovarian On complaint against filed a that she alleging first became on negligence aware June Defendant raised defense, the statute of a arguing plaintiff’s limitations as cause action became after 2001. Specifically, time-barred March allegedly defendant claimed that negligent knew of conduct before June husband because her met with Carden, malpractice attorney, plaintiff’s surgery. four days after inspection Defendant moved for an camerа of the documents requested provided Carden’s client file and that he be with the relevant Determining placed documents. communications invoking her former at issue with rule over period, defeat the court ordered to turn the relevant documents from Carden’s file. concluding majority the trial decision now affirms court’s legal plaintiff “voluntarily injected into the case the factual and App. Ill. injury.”
issues when she learned of 3d at Illinois this addressing majority there are cases Because nо Controls, case, v. Pyramid on a federal Inc. Siemens Industrial relies
309
(N.D.
1997),
Automations,
Ill.
also involved
Inc.,
F.R.D.269
which
176
There,
alleged that the
the
of limitations defense.
a statute
Act of 1987
had
the Franchise Disclosure
defendant
violated
(West 1996))
Pyra
in 1995.
by terminating its franchise
ILCS 705/27
one-year
to
Controls,
attempt
271.
defeat the
mid
176 F.R.D. at
In an
defense,
not until it
plaintiff alleged
the
it was
time limitation
pos
it
its
in 1997 that
discovered
legal
its current
counsel
met with
Controls,
F.R.D. at
176
against
Pyramid
the defendant.
sible claim
that, after
interrogatоries,
In
to
the
admitted
274.
its answers
termination,
represented by former
it was
being
alleged
notified of the
Pyramid
it
in 1995.
company
sold its assets
another
counsel
Controls,
requested
The
produce counsel, objected attorney-client on and the based the Controls, In Pyramid 176 at 271. to determine privilege. F.R.D. order placed the had communications at the whether these Rhay, the applied at-issue waiver test articulated in Hearn v. 68 (E.D. 1975). F.R.D. 580 Wash. (1) if Hearn, attorney-client privilege
Under a client waives the as the privilege by sertion of the is the some act as result of affirmative (2) suit; act, the serting party, filing through such as affirmative by asserting party placed protected has information at issue mak (3) case; ing it relevant of the would application deny opposing party access to information vital to its defense. Controls, 272, citing Hearn, at F.R.D. at Pyramid 176 F.R.D. 68 test, three-pronged on the court Based Hearn’s concluded limitations, put defeat of had plaintiff, attempting to the statute attorneys concerning communications with its former al Controls, According termination. 176 F.R.D.at 274-75. leged Pyramid court, necessary [was] “invasion specific of [was] because content those communications essential Controls, resolving Pyramid of issue.” 176 statute F.R.D.at 274.
However, commentators, academics, strongly and courts have Public Co. criticized standard set forth in Hearn. Service Newof 166,171-72 487, 493-94, 2000); Lyons, (App. Mexicov. 129 N.M. 10 P.3d Communications, Harv. L. Developments Law-Privileged Rev. focusing on particular, 1640-42 it is criticized for party’s despite opposing privileged need for the information certainty encouraging Supreme emphasis Court’s on the role of attorneys frank their clients. 98 full and communication between Further, target approach L. Rev. at Hearn does not Harv. type distinguishable that is from unavoidable unfair unfairness generated every ness assertion its application can not be limited. Harv. L. According Rev. at 1641-42. tо the Third Circuit, cases like Hearn that have allowed the opposing party discovery confidential communications in order test the Ghent’s contentions are of dubious validity. Rhone-Poulenc Ro (3d 1994). Co., rer Inc. v. Home Indemnity F.3d Cir. *9 Rhone court explained: opinions analysis
“While the up dress their with a fac- checklist of tors, they to appear rest on a conclusion the information sought is relevant and in should fairness be disclosed. is Relevance determining not the standard whether not or evidence should protected be privilegеd, from disclosure as and that the remains might vital, case even if one conclude the facts to be disclosed are highly probative, directly or the go relevant even to heart of is- an Rorer, sue.” Rhone-Poulenc 32 F.3dat 864. a impression,
Because this is case of first and because state anything federal courts identifying are but uniform in what constitutes case, given an “at-issue in a respectfully waiver” I submit the in employed Pyramid Hearn standard not Controls should be followed. Otherwise, virtually in every thе of case statute limitations is where pleaded as a and the discovery defense client relies on the to rule overcome the period, opposing may the party discover confidential communications between the client and the merely to City Boston, test the client’s See 433 credibility. Darius v. of (2001) that, (holding Mass. 741 N.E.2d 58 where defendant asserts a statute of limitations and the defense defense, discovery on the relies rule to overcome that the defendant not, solely based on may plaintiff’s discovery the invocation of the rule, automatically plaintiff’s attorney-client relationship the probe simply plaintiff may to determine whether the have revealed something her attorneys might helpful to his or be case). effectively To allow such would swallow rendering though privilege it useless even the holder directly put privileged never in the information at issue case. Hearn, Based I propose approach on the criticism of to at-issuе recently 129 adopted Lyons, waiver several courts. See N.M. at (several recently litigant 10 P.3d 171 courts have concluded that a if, if, litigant directly only waives in puts attorney’s litigation). jurisdic advice at These limit to tions the extent of the at-issue waiver doctrine circumstances “privilege-holder injects privileged in material itself which Schroeder, 140 A.2d into case.” Aranson v. N.H. (1995), Marcus, Privilege: R. The Perils Waiver quoting words, In other 1605, 1633 Mich. Rev. Litigator, L. injected privileged has asserting party privilege when the аctually required case, such the information material into the privilege must either the holder of for resolution using the from privilege prevented or be attorney-client waive Aranson, case. the elements information to establish privileged or offensive approach requires This A.2d at 1030. 140 N.H. at be deemed party before the will privileged direct materials use of 494, 10 Lyons, 129 N.H. at attorney-client privilege. its have waived P.3d at 173. has taken at bar is not a situation where
The case at issue her former step placing the advice of affirmative Rather, it is who seeks or in order to assert a claim defense. Carden in order husband’s communications with to discover holder, is plaintiff, privilege claim. Because as disprove plaintiffs (or defense) these by relying upon attempting prove not claim any prevail, she has waived privileged communications order Thus, de accordance with with Carden. review, any turn novo I the trial court’s order to over would reverse documents to defendant. *10 COMPANY, v. Plaintiff-Appellee, STEEL
LIEBOVICH AND ALUMINUM WORKS, INC., Defendant-Appellant. IRON ADVANCE Second No. 2 — 04—0279 District Opinion filed November