apply because the Illinois Human Rights Commission recently refused to apply section 926.210 in Cooper v. Illinois Department of Human Rights. 959 F. Supp. 909, 1997 WL 575420, at *1.
Hugley's argument is unpersuasive. In Cooper, the complainant wanted to review non-verbatim witness statements which were written down by the IDHR investigator. Id. at *5. The IDHR argued that the statements were privileged and, thus, protected from discovery under section 926.210. The Illinois Human Rights Commission found section 926.210 inapplicable because the handwritten, nonverbatim witness statements did not constitute mental impressions which were protected by section 926.210(a)(2); rather, the statements consisted only of the witnesses' testimony. Id. The Commission stated that if the investigator had written down more than what the witness has said, that portion may be redacted. The Commission also stated that it recognized the importance of "having staff characterizations protected by the privilege" and providing the IDHR staff "liberty to communicate with each other about cases and their potential disposition." Id.
Thus, Cooper does not stand for the proposition that the Illinois Human Rights Commission would never recognize the privilege afforded under section 926.210. The Commission simply found the privilege inapplicable to the documents at issue in that case.
Having determined that the court will recognize and strictly construe the privilege afforded under section 926.210, the court must now determine whether the withheld documents are protected by section 926.210.
In the present case, the court finds that section 926.210 protects (1) documents number 4, 5, and 6 because these documents are memoranda between the IDHR staff; (2) document number 8 because this document reveals the investigative plan of the IDHR; (3) document number 9 because this document reflects the legal advice of the IDHR; and (4) page 9 of document number 16 because the information on that page reflects the deliberative processes of the IDHR. Thus, the court grants the IDHR's motion to quash as to documents number 4, 5, 6, 8 and 9 and page 9 of document number 16.
The court finds that section 926.210 does not protect documents 1, 2, 3, 14, and pages 1-8 and 10-11 of document 16 because the information contained therein is simply the investigator's notes of what other individuals told the investigator. The information in those documents does not reflect the "deliberative processes, mental impressions, or legal theories and advice of the Department" as contemplated by section 926.210(a)(2). See Cooper, 959 F. Supp. 909, 1997 WL 575420, at *5. Further, these documents are not "internal memoranda" as contemplated by section 926.210(a)(1).
The court also finds that section 926.210 does not protect documents number 7, 10, 11, 12, 13, and 15. These documents are simply documents generated during the investigatory process which do not contain the "deliberative processes, mental impressions, or legal theories and advice of the Department" as contemplated by section 926.210(a)(2). Further, these documents are not "internal memoranda" as contemplated by section 926.210(a)(1).
Thus, the court finds that section 926.210 protects documents number 4, 5, 6, 8 and 9 and page 9 of document number 16 and grants the motion to quash as to those items. Section 926.210 does not, however, protect documents number 1, 2, 3, 7, 10, 11, 12, 13, 14, 15 and pages 1-8 and 10-11 of document number 16. Thus, the court must determine whether those documents are protected from discovery by either the attorney-client privilege or the work-product doctrine.
B. Attorney-client privilege
The IDHR asserts that documents number 1, 2, 3, 7, 10, 11, 12, 13, 14, 15, and 16 are protected by the attorney-client privilege. The court disagrees.
In this federal question case, the issue of whether these documents are protected by the attorney-client privilege is governed by federal, not state, law. FED. R. EVID. 501. The Seventh Circuit has adopted the elements of the attorney-client privilege as stated by Dean Wigmore in his treatise Evidence at Trials in Common Law :
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.