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Consolidation Coal Co. v. Bucyrus-erie Co.





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Louis J. Giliberto, Judge, presiding.


Plaintiff, Consolidation Coal Company (Consolidation), brought this action in the circuit court of Cook County on January 18, 1977, to recover damages allegedly sustained on August 7, 1973, when its wheel excavator collapsed at its Pinckneyville, Illinois, coal mine. The excavator was designed, manufactured and repaired for Consolidation by defendant, Bucyrus-Erie (B-E), a Delaware corporation, licensed to do business in Illinois with its principal place of business and corporate headquarters in Wisconsin. Its attorneys are licensed to practice law in Illinois and Wisconsin. During the course of pretrial discovery, B-E refused to comply with the trial court's orders, and its attorney was held in contempt of court and fined $50. The appellate court affirmed the discovery rulings with some modification (93 Ill. App.3d 35), and we allowed B-E's petition for leave to appeal to consider the scope of the attorney-client and work-product privileges in Illinois.

Consolidation commenced discovery in May of 1977 by filing a production request for all of B-E's documents relating to the design, manufacture, erection, and repair of the wheel excavator and all documents relating to the investigation of the excavator's collapse or otherwise relating to the facts in controversy, including memoranda, notes, correspondence, reports, statements, interviews, photographs, slides, films, recordings, tapes, micrographs, and metallurgical test data. B-E produced thousands of documents for inspection, but, invoking the attorney-client and work-product privileges, refused to produce a "metallurgical report" prepared by its employee, Richard Sailors, a report prepared by Tom Learmont, its director of engineering and mining machinery, and memoranda and notes of interviews with various B-E employees prepared by its in-house counsel. Following several hearings pursuant to Consolidation's motion to compel compliance, extensive briefings by the parties and an in camera inspection of the contested documents, the trial court ordered B-E to provide all of the documents in question, with the exception of certain deleted portions which it ruled constituted "work product" and the "Learmont Report," which the court ruled was exempt from discovery under the attorney-client privilege. No question is now raised regarding the trial court's ruling on the privileged status of the "Learmont Report."

The appellate court considered the attorney-client privilege inapplicable because there was no allegation by B-E that the disputed documents were received from members of B-E's "control group." It further held that neither Sailors' metallurgical report nor the bulk of B-E's attorney's notes constituted work product. It found that Sailors' report contains objective and material information that does not reflect or disclose B-E's attorneys' mental impressions, theories or litigation plans and modified the trial court's order to the extent that no deletions were necessary. Similarly, the court found that the attorneys' notes, with minor exceptions, contain factual information submitted by B-E's employees and do not reveal the attorneys' mental processes in shaping litigation strategy.

In both the trial and appellate courts>, B-E argued that the law of Wisconsin should govern the scope of the attorney-client and work-product privileges. The appellate court followed the "most significant relationship test" of the Restatement (Second) of Conflicts of Laws, section 139 (1971), and affirmed the trial court, holding that the Illinois policy favoring discoverability was not outweighed by Wisconsin's contrary approach and Illinois law would therefore apply. B-E has apparently abandoned the conflicts issue in this court, since the question was neither raised in its petition for leave to appeal nor argued in its supplemental brief. Although B-E asserts that the documents are privileged under either Wisconsin or Illinois law, and its brief contains a citation of Wisconsin authorities supporting this proposition, its brief contains no discussion, argument or authority concerning the applicable law. Thus, if the conflicts issue has not been abandoned, it has been waived. (73 Ill.2d R. 341(e).) We thus proceed to consider the privilege claims under Illinois law. B-E contends that the attorneys' notes and memoranda and Sailors' metallurgical report are protected under both the work-product doctrine and the attorney-client privilege.

The work-product doctrine in Illinois, which protects against disclosure of "the theories, mental impressions, or litigation plans of [a] party's attorney" (73 Ill.2d R. 201(b)(2)), is believed necessary to prevent complete invasion of counsel's files. (Monier v. Chamberlain (1966), 35 Ill.2d 351, 359; Stimpert v. Abdnour (1962), 24 Ill.2d 26, 31.) In the Federal courts>, this material, generally referred to by commentators as "opinion" work-product (see, e.g., Comment, Discovery and the Work Product Doctrine, 11 Loy. Chi. L.J. 863, 873 (1980)), is discoverable, if at all, only under "rare" circumstances (Hickman v. Taylor (1947), 329 U.S. 495, 513-14, 91 L.Ed. 451, 463-64, 67 S.Ct. 385, 394-95; see also Upjohn Co. v. United States (1981), 449 U.S. 383, 399-400, 66 L.Ed.2d 584, 597-98, 101 S.Ct. 677, 687-88; United States v. Nobles (1975), 422 U.S. 225, 244-45, 45 L.Ed.2d 141, 157, 95 S.Ct. 2160, 2173 (White, J., concurring)), because it is thought that requiring disclosure of an attorney's strategies, legal theories and mental impressions would result in inefficiency, unfairness and sharp practices which would ultimately have a "demoralizing" effect on the legal profession (Hickman v. Taylor (1947), 329 U.S. 495, 511, 91 L.Ed. 451, 462, 67 S.Ct. 385, 394).

In Monier, we distinguished between memoranda made by counsel of his impression of a prospective witness and verbatim statements of such witness in an attempt to clarify the work-product doctrine in Illinois. We consider today whether counsel's notes and memoranda of employees or witnesses' oral statements which are not verbatim and are not reviewed, altered, corrected, or signed by these individuals are protected work-product. While our rule differs significantly from the more broadly protective Federal rule (see generally Johnston, Discovery in Illinois and Federal Courts>, 2 J. Mar. J. Prac. & Proc. 22 (1968)), we agree with the Supreme Court that notes regarding oral statements of witnesses, whether in the form of attorney's mental impressions or memoranda, necessarily reveal in varying degrees the attorney's mental processes in evaluating the communications. See Upjohn Co. v. United States (1981), 449 U.S. 383, 399-400, 66 L.Ed.2d 584, 597-98, 101 S.Ct. 677, 687-88, citing Hickman v. Taylor (1947), 329 U.S. 495, 91 L.Ed. 451, 67 S.Ct. 385 ("what he saw fit to write down regarding witnesses' remarks"; "the statement would be his [the attorney's] language, permeated with his inferences"); see also In re Grand Jury Investigation (E.D. Pa. 1976), 412 F. Supp. 943, 949 (notes of conversation with witnesses "are so much a product of the lawyer's thinking and so little probative of the witnesses' actual words").

Some of the disputed documents prepared by B-E's attorneys in this case are handwritten; others are typewritten in the form of memoranda. In our in camera inspection, it was evident that the typewritten documents, which were reduced to succinct and concise form, represent the attorneys' efforts in reviewing, analyzing and summarizing the portion of the communications with potential witnesses which the attorneys believed important in developing their theories of their client's cause. As such, they necessarily "`reveal the shaping process by which the attorney[s] [have] arranged the available evidence for use in trial as dictated by [their] training and experience'" (Monier v. Chamberlain (1966), 35 Ill.2d 351, 359) and are therefore entitled to protection. The handwritten notes represent a mixture of factual material and counsel's work product in the form of his conclusions, characterizations and summaries. Concededly, some of the factual material may be relevant to the issues. In many instances, however, this material is so inextricably intertwined with the privileged material that its isolation is virtually impossible. To impose upon the trial bench of this State the burden of reviewing voluminous material of this character would be totally incompatible with the efficient disposition of litigation. Moreover, and more importantly perhaps, such a procedure would violate the spirit of Monier and our discovery procedures which contemplate that discovery generally proceed without judicial intervention. (Williams v. A.E. Staley Manufacturing Co. (1981), 83 Ill.2d 559, 564.) It would only serve to "increase the burden of already crowded court calendars, and thwart the efficient and expeditious administration of justice" which Monier sought to prevent. (Monier v. Chamberlain (1966), 35 Ill.2d 351, 357.) Accordingly we hold that attorneys' notes and memoranda of oral conversations with witnesses or employees are not routinely discoverable. However, because of the possibility that such notes and memoranda may, on rare occasions, constitute the only source of factual material, we believe that an exception must be made from the absolute work-product exemption. We are cognizant of the difficulty and conflict which may arise in applying any exception, which, of course, led us to reject the Federal good-cause doctrine in Monier. Nonetheless, we believe that a narrowly limited exception must be made and defined to permit access to such material in those rare instances. Since the exception will rarely be operable, conflicts should be minimal. We therefore hold that the attorney's notes or memoranda are discoverable only if the party seeking disclosure conclusively demonstrates the absolute impossibility of securing similar information from other sources.

There is nothing in this record to indicate any necessity that would lead us to hold the exception applicable here. Indeed, according to the affidavit of one of Consolidation's attorneys, B-E has made available for inspection "engineering records, design calculations, material specifications, correspondence and notes estimated to include tens of thousands of individual documents." In short, there is nothing which indicates that Consolidation does not already have or cannot obtain through its attorneys' efforts and depositions the same factual information that is now included in the form of B-E's attorneys' work product.

We do not believe, however, that Sailors' metallurgical report can fairly be characterized as B-E's attorney's work product. As the appellate court noted, the report is actually a notebook that contains objective and material information consisting of mathematical computations, formulae, tables, drawings, photographs, industry specification data, and handwritten notes. It does not reflect or disclose the theories, mental impressions or litigation plans of B-E's attorneys. Nor is it the product of the attorneys' mental processes. Sailors never communicated with the legal department prior to preparing this material, nor was he advised by his superior, who had requested Sailors' help, as to what the theories or plans of the attorneys were relative to this litigation. He was simply asked to analyze pieces of the machinery and render an opinion as to what had occurred. When his report was transferred to the legal department some six months to a year after it had been made, it did not, as B-E argues, thereby become part of the attorneys' thought processes. It is therefore not entitled to protection under the work-product doctrine. (See generally Johnston, Discovery in Illinois and Federal Courts>, 2 J. Mar. J. Prac. & Proc. 22, 48-51 (1968) (examining the possibility that an expert's report may constitute work product as defined in Monier).) Nor is it, in our judgment, exempt from discovery under the attorney-client privilege.

The question of who speaks for a corporation on a privileged basis has created considerable confusion and conflict in the Federal system and has frequently been the subject of law review commentaries. (E.g., Burnham, Confidentiality and the Corporate Lawyer: The Attorney-Client Privilege and "Work Product" in Illinois, 56 Ill. B.J. 542 (1968); Weinschel, Corporate Employee Interviews and the Attorney-Client Privilege, 12 B.C. Ind. & Comm. L. Rev. 873 (1970); Note, Attorney-Client Privilege for Corporate Clients: The Control Group Test, 84 Harv. L. Rev. 424 (1970); Note, Upjohn Co. v. United States: Death Knell for the Control Group Test and a Plea for a Policy-Oriented Standard to Corporate Discovery, 31 Syracuse L. Rev. 1043 (1980).) B-E urges that we abandon the "control group" test first adopted in Illinois by the appellate court in Day v. Illinois Power Co. (1964), 50 Ill. App.2d 52, as a means of defining "client" in the corporate context. (See also Johnson v. Frontier Ford, Inc. (1979), 68 Ill. App.3d 315, 319; Shere v. Marshall Field & Co. (1974), 26 Ill. App.3d 728, 731-32; Golminas v. Teitelbaum Construction Co. (1969), 112 Ill. App.2d 445, 449.) This test was recently rejected by the Supreme Court as the governing test in the Federal courts>. Upjohn Co. v. United States (1981), 449 U.S. 383, 66 L.Ed.2d 584, 101 S.Ct. 677.

In Cox v. Yellow Cab Co. (1975), 61 Ill.2d 416, this court indicated that there are many factors relevant to a determination whether a statement given by a corporate employee is protected by the attorney-client privilege, including "the purpose for which the statement was required, the understanding by its maker as to that purpose, the extent to which its confidentiality was maintained after it was made and in the course of its transmission to counsel, and others." (61 Ill.2d 416, 420.) While listing some of the requirements essential to assertion of the privilege, the court declined to articulate a particular test and expressed no opinion on the appellate court's application of the control-group test since there were insufficient facts in the record from which the existence of the privilege could be ascertained.

In the Federal system prior to Upjohn, three major tests had emerged. The most widely adopted control-group test was first announced in City of Philadelphia v. Westinghouse Electric Corp. (E.D. Pa. 1962), 210 F. Supp. 483, petition for writ of mandamus or prohibition denied sub nom. General Electric Co. v. Kirkpatrick (3d Cir. 1962), 312 F.2d 742, cert. denied (1963), 372 U.S. 943, 9 L.Ed.2d 969, 83 S.Ct. 937, at a time when one Federal court had held that the attorney-client privilege was not available to corporations (Radiant Burners, Inc. v. American Gas Association (N.D. Ill. 1962), 207 F. Supp. 771, aff'd on ...

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