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06/09/95 DAVID BUCKMAN v. COLUMBUS-CABRINI MEDICAL

June 9, 1995

DAVID BUCKMAN, SPECIAL ADM'R OF THE ESTATE OF TAMMY BUCKMAN, DECEASED, PLAINTIFF-APPELLEE,
v.
COLUMBUS-CABRINI MEDICAL CENTER, KATIE AUSTIN, R.N., AND KEVIN FINKLE, M.D., DEFENDANTS, (JAMES QUINN, CONTEMNOR-APPELLANT).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE ODAS NICHOLSON, JUDGE PRESIDING.

Presiding Justice Cousins delivered the opinion of the court: Gordon and McNULTY, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Contemnor-appellant, James R. Quinn, attorney for defendant Columbus-Cabrini Medical Center (the Medical Center), appeals from the trial court's orders: (1) of October 4, 1993, which granted the motion of plaintiff, David Buckman, special administrator of the estate of Tammy Buckman, deceased, to compel the production of certain memoranda and required the Medical Center to produce certain memoranda of contemnor-appellant of December 11, 1992, and January 13, 1993; and (2) of January 20, 1994, finding him in contempt of court for refusal to comply with the trial court's order of October 4, 1993, requiring the Medical Center to produce certain memoranda of December 11, 1992, and January 13, 1993. The trial court also assessed a fine against contemnor-appellant in the amount of $25 for his refusal to comply with the trial court's order of October 4, 1993. On appeal, contemnor-appellant contends that: (1) the trial court erred in granting plaintiff's motion to compel the production of certain memoranda of December 11, 1992, and January 13, 1993; and (2) the trial court's order of January 20, 1994, finding contemnor-appellant to be in contempt of court for refusing to comply with its order of October 4, 1993, requiring the production of certain memoranda of December 11, 1992, and January 13, 1993, should be vacated.

We reverse and vacate the contempt order.

BACKGROUND

On June 19, 1992, plaintiff filed a medical malpractice action against defendants, the Medical Center, Katie Austin, R.N., and Kevin Finkle, M.D.. The complaint sought damages for the wrongful death of the deceased and averred that defendants' negligence in the care and treatment of the deceased proximately resulted in her death.

During discovery, plaintiff caused a subpoena for deposition to be served upon Ms. Boonie Saeng-Mani, a nurse employed part-time by the Medical Center in the intensive care unit (ICU) wherein the deceased was a patient receiving medical care prior to her death. After receiving the subpoena for deposition, Ms. Saeng-Mani went to the Medical Center which, in turn, directed her to contemnor-appellant. She subsequently met with contemnor-appellant, who later appeared on her behalf at her deposition.

In response to questions raised at Ms. Saeng-Mani's deposition taken on March 4, 1993, and in response to plaintiff's interrogatories directed to defendant, plaintiff was informed that contemnor-appellant had met with Ms. Saeng-Mani subsequent to her receipt of the subpoena for deposition and that contemnor-appellant had compiled notes from that meeting. At the deposition as well as in the answers to plaintiff's interrogatories, it was claimed that the communications between contemnor-appellant and Ms. Saeng-Mani were protected by the attorney-client privilege.

On March 26, 1993, plaintiff filed a motion to compel the Medical Center to produce certain interview notes of contemnor-appellant pertaining to his interview of Ms. Saeng-Mani. In the motion, plaintiff argued that the interview notes were not protected by the attorney-client privilege because Ms. Saeng-Mani was not a client of contemnor-appellant when the communications were made. In particular, plaintiff maintained that because Ms. Saeng-Mani was not a party to the instant litigation, and because Ms. Saeng-Mani was not a member of the Medical Center's "control group," neither the communications between contemnor-appellant and Ms. Saeng-Mani nor any resulting interview notes were protected by the attorney-client privilege.

On April 30, 1993, the Medical Center filed a response to plaintiff's motion to compel the production of certain interview notes of contemnor-appellant pertaining to his interview of Ms. Saeng-Mani. In the response, the Medical Center claimed that the relevant communications between contemnor-appellant and Ms. Saeng-Mani were made while contemnor-appellant was acting in his capacity of Ms. Saeng-Mani's attorney for the purpose of securing legal advice. The Medical Center also maintained that the Medical Center was a self-insurer hospital whereby it was duty bound to defend any lawsuit against Ms. Saeng-Mani seeking damages for negligence as averred in the instant case and that the attorney-client privilege also extended to communications between an insured and insurer. In response to plaintiff's contention that the attorney-client privilege did not apply to the interview notes because Ms. Saeng-Mani was not a member of the control group, the Medical Center further averred that Ms. Saeng-Mani's status as a member of the control group was not the only way for the privilege to be applicable and that, in the instant case, it was not determinative because: (1) the privilege also extended, and was applicable in the instant case, to communications between an insured and the insurer; (2) the control group analysisdid not apply because Ms. Saeng-Mani was a client of contemnor-appellant and was not a "corporate claimant" to whom the control group rule applied; and (3) even assuming arguendo that the control group analysis was proper in the instant case, because Ms. Saeng-Mani was a person who could be charged with liability in connection with the instant case, her communications with contemnor-appellant were privileged. In addition, as an alternative position, the Medical Center asserted that prior to ordering the production of contemnor-appellant's interview notes, the proper course would be for the trial court to order an in camera inspection of those notes.

On July 19, 1993, after an initial hearing on plaintiff's motion to compel the production of certain interview notes of contemnor-appellant, the trial court entered an order which required the Medical Center to provide the trial court with the relevant interview notes by August 9, 1993, for an in camera inspection and set the matter for further hearing on a later date. In its order, the trial court also required the Medical Center, by August 9, 1993, to provide the trial court with a list of those documents for which the privilege was claimed.

On October 4, 1993, at a subsequent hearing on plaintiff's motion to compel the production of certain interview notes of contemnor-appellant, the trial court made the following ruling:

"I have gone through this material, and I find that for the most part it's either irrelevant or privileged. I find discoverable, however, the December 11th ...


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