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Hayes v. Burlington Northern

June 12, 2001

SHARON E. HAYES, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF HOWARD HAYES, DECEASED, PLAINTIFF-APPELLEE,
v.
BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, DEFENDANT-APPELLANT (RICHARD T. SIKES, JR., CONTEMNOR-APPELLANT).



Appeal from the Circuit Court of Cook County No. 99 L 7815 Honorable David R. Donnersberger, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cahill

Not Released For Publication

SHARON E. HAYES, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF HOWARD HAYES, DECEASED, PLAINTIFF-APPELLEE,
v.
BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, DEFENDANT-APPELLANT (RICHARD T. SIKES, JR., CONTEMNOR-APPELLANT).

Appeal from the Circuit Court of Cook County No. 99 L 7815 Honorable David R. Donnersberger, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cahill

Defendant Burlington Northern and Santa Fe Railway Company appeals an order compelling production of two documents. Defendant claims the documents are protected by the attorney-client and work product privileges. Defendant also appeals an order of contempt entered against Richard T. Sikes, defendant's attorney, imposing a $100 fine when he refused to produce the documents. We vacate the contempt order, reverse the order of the trial court to turn over the documents and remand for further proceedings consistent with this opinion.

 Howard Hayes was working as a switchman for defendant when he was injured in a train accident on March 9, 1998. Hayes signed a release on September 4, 1998, of all claims arising from the accident in exchange for $50,000.

Hayes was later diagnosed with cervical herniations that required surgery. Defendant reopened Hayes' claim file and paid for the surgery. Hayes suffered a series of heart attacks during the surgery and died on May 4, 1999.

Plaintiff Sharon E. Hayes filed a negligence complaint against defendant on July 15, 1999. Plaintiff alleged that Hayes' death was caused by injuries he received in March 1998 while employed by defendant. Defendant filed a motion to dismiss the complaint under section 2-619(a)(6) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(6) (West 1996)). Defendant contended in the motion that the September 4, 1998, release barred plaintiff's claim.

A dispute arose in the course of discovery when plaintiff asked for production of all documents in Hayes' claim file. Defendant claimed two documents in the file were privileged: (1) a July 19, 1999, Federal Employers' Liability Act (FELA) (45 U.S.C. §51 (1994)) case summary sent to defendant's outside counsel; and (2) a July 19, 1999, letter to Paul Hoferer, defendant's general counsel, relating to plaintiff's lawsuit against defendant. Both documents were written by Fred James, defendant's director of claims.

Plaintiff filed a series of emergency motions to compel. Plaintiff argued that defendant had waived the privilege by interposing the release executed by Hayes as affirmative matter in the motion to dismiss. The trial court ordered defendant to produce the documents for an in camera inspection and to file an affidavit to support the claim of privilege. Fred James's affidavit was filed on December 2, 1999.

The trial court, after in camera review, granted plaintiff's motion to turn over all documents in the claim file on or before December 8, 1999. The court ruled that defendant failed to show that James was part of defendant's "control group" which would support an attorney-client privilege claim. The court then ruled in the alternative that, even if James were a member of the control group, privilege was waived when the release was placed in issue by defendant's motion to dismiss. Defendant filed an emergency motion for reconsideration on December 7 and asked for leave to file an additional affidavit and case law. This motion was denied. Defendant filed a second motion to reconsider which set out facts attempting to establish that James was a member of defendant's control group. In response to this motion, the trial court set a briefing schedule and allowed plaintiff to depose James.

The trial court held a hearing on March 8, 2000. The court again ordered defendant to produce the two disputed documents, relying on the reasoning of its first order. Counsel for defendant refused. The court found attorney Sikes in contempt and imposed a $100 fine. This appeal followed.

We review three related questions: (1) is James a member of defendant's control group? (2) if he is, do the documents meet the three-part test to establish privilege set out in Waste Management, Inc. v. International Surplus Lines, Insurance Co., 144 Ill. 2d 178, 579 N.E.2d 322 (1991)? and (3) did defendant waive the privilege ...


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