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Nieukirk v. Bd. of Fire & Police Comm'rs





APPEAL from the Circuit Court of Peoria County; the Hon. ROBERT HUNT, Judge, presiding. MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 18, 1981.

This is an action brought pursuant to the Illinois Administrative Review Act to review the decision of the appellant, the Board of Fire and Police Commissioners (Board) discharging the appellee, Jack Nieukirk, from the city of Peoria Fire Department. The circuit court of Peoria County ordered the appellee be reinstated, and it is from that order which the Board appeals.

Nieukirk was charged with cheating on a promotion examination administered December 16, 1978. At the hearing before the Board on November 1, 1979, concerning those charges, one of the members of the Board asked Nieukirk, "Mr. Nieukirk, I would like to ask you at this time did you also take a polygraph examination from Mr. Lousig-Nont?" Nieukirk responded, "On advice of my attorney I cannot answer the question at this time." The attorney for the Board advised Nieukirk that he had no right to refuse to answer. The question was then asked again, and Nieukirk again refused to answer. Nieukirk was eventually found innocent of cheating on the examination.

On January 4, 1980, the city fire marshall filed charges against Nieukirk for refusing to answer the questions at the November 1, 1979, hearing, charging that this failure to answer was: (1) conduct unbecoming an employee which might be detrimental to the Service (Rule 2000.28(g) of the Rules and Regulations of the Peoria Fire Department); (2) an act or omission contrary to good order and discipline of the department (Rule 2000.28(p)); and (3) an act or omission contrary to the law of the State of Illinois. A hearing was held on the charges on January 23, 1980. After taking the case under advisement, the Board discharged Nieukirk from the fire department for conduct unbecoming an employee which might be detrimental to the service, and an act contrary to good order and discipline of the department as charged.

Nieukirk sought administrative review of the Board's decision, alleging that the information sought was protected by the attorney-client privilege, and the punishment of discharge was unreasonable and an abuse of discretion. The trial court reversed the decision of the Board, stating that the decision was against the manifest weight of the evidence and contrary to law. The court held the information sought to be privileged.

On appeal, the Board raises two issues: (1) Whether or not the information sought by the Board was privileged; and (2) whether or not the penalty ordered by the Board was excessive.

Appellant's first issue on appeal is whether or not the Board sought privileged information in asking whether Nieukirk had taken a polygraph examination. The Board contends this information was not privileged, while Nieukirk argues that it was a privileged communication in that it was protected by the attorney-client privilege or as attorney's work product.

• 1 The attorney-client privilege protects communications made by a client to an attorney under the following circumstances: (1) where legal advice of any kind is sought from an attorney in his capacity as such, (2) the communications relating to that purpose, (3) made in confidence by the client, (4) are at his instance permanently protected from disclosure by the client or the attorney, (5) unless that protection is waived. (People v. Adam (1972), 51 Ill.2d 46, 280 N.E.2d 205.) The person asserting the privilege has the burden of proving its existence. Shere v. Marshall Field & Co. (1974), 26 Ill. App.3d 728, 327 N.E.2d 92.

• 2 We believe appellee has failed to carry his burden. The record is devoid of any facts expressly proving the elements of the privilege. At the first hearing, Nieukirk simply refused to answer the question regarding the second polygraph examination on the advice of his attorney. At the second hearing, the evidence consisted solely of the transcript of the first hearing and the testimony of an attorney testifying as to the law of the case. No facts are presented to which the elements of the privilege apply. Absent express facts establishing the privilege, we can only conclude that the reason for the second polygraph examination of Nieukirk by Lousig-Nont was for purposes other than Nieukirk's seeking professional advice from his lawyer.

• 3 Nieukirk's next contention is that the information regarding the polygraph examination was protected as attorney's work-product. In Monier v. Chamberlain (1966), 35 Ill.2d 351, 221 N.E.2d 410, the Illinois Supreme Court enumerated the requirements for work-product to be privileged and not discoverable. The court held that work-product covered only those memoranda, reports or documents which reflect the employment of the attorney's legal expertise. Those "which reveal the shaping process by which the attorney has arranged the available evidence for use in trial as dictated by his training and experience" (Miller, Recent Discovery, 1963 Ill. L.F. 666, 673), and only those can properly be said to be made in preparation for trial and thus are privileged. Thus, the question is reduced to whether or not the polygraph expert was engaged in preparation for trial, thus precluding the discovery of his identity and his opinion.

Discovery of expert witnesses and the expert's opinion is controlled by section 58(3) of the Civil Practice Act, which reads:

"A party shall not be required to furnish the names or addresses of his witnesses, except that upon motion of any party disclosure of the identity of expert witnesses shall be made to all parties and the court in sufficient time in advance of trial so as to insure a fair and equitable preparation of the case by all parties." Ill. Rev. Stat. 1979, ch. 110, par. 58(3).

The Illinois cases under this provision are not helpful in this case. However, the historical note to section 58(3) (Ill. Ann. Stat., ch. 110, par. 58(3), Supplement to Historical and Practice Notes at 118 (Smith-Hurd Supp. 1980-1981), suggests that the provision is parallel to Federal Rule of Civil Procedure 26(b)(4), and we believe cases interpreting Rule 26(b)(4) are appropriate precedent for interpreting section 58(3). Rule 26(b)(4) expressly provides that an expert witness engaged to testify shall be identified. It further provides that the expert's opinion and the facts on which the opinion is based shall be disclosed. The rationale for this rule is that the expert's expected testimony is evidence as well as trial preparation. Therefore, it is discoverable.

However, the Federal rule expressly exempts facts known or opinions held by experts who are retained or specially employed by a party in anticipation of litigation or preparation for trial and who are not expected to be called as a witness at trial from discovery. (See Seiffer v. Topsy's International, Inc. (D. Kan. 1975), 69 F.R.D. 69.) This information is discoverable only upon a showing of exceptional circumstances. The facts and opinions of the expert developed solely in preparation for ...

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