Court of Appeals of Illinois, First District, First Division
ROBERT F. HARRIS, Public Guardian of Cook County, as Independent Administrator of the Estate of Marshana Philpot, Deceased, Plaintiff-Appellee,
ONE HOPE UNITED, INC., LASHANA PHILPOT, and PIXIE DAVIS, Individually and as Agent of One Hope United, Inc., Defendants (Stellato and Schwartz, Ltd., Contemnor-Appellant).
Appeal from the Circuit Court of Cook County. No. 11 L 1160 Honorable Eileen Brewer, Judge Presiding.
JUSTICE DELORT delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Hoffman concurred in the judgment and opinion.
¶ 1 The self-critical analysis privilege protects certain documents from disclosure in litigation. Some federal courts have recognized the privilege, but Illinois state courts have not. In the court below, the defendant relied on the privilege to justify its refusal to turn over certain documents to the plaintiff. The defendant was held in "friendly contempt" to facilitate an interlocutory appeal regarding its use of the privilege. Heeding our supreme court's admonition that recognizing common law privileges is a matter best left to the legislature, we decline to recognize the privilege ourselves and therefore generally affirm the judgment below.
¶ 2 BACKGROUND
¶ 3 One Hope United (One Hope) contracts with the Illinois Department of Children and Family Services (DCFS) to provide services related to keeping troubled families together. Seven-month-old Marshana Philpot died while her family participated in One Hope's "Intact Family Services" program. The Cook County public guardian (Public Guardian), acting as administrator of Marshana's estate, filed this wrongful death case to recover damages against One Hope, its employee Pixie Davis, and Marshana's mother, Lashana Philpot.
¶ 4 The complaint alleges, inter alia, that DCFS received a complaint in December 2009 about Lashana's neglect and/or abuse of Marshana. DCFS investigated the complaint and assigned the matter to One Hope. Beginning in February 2010, One Hope began monitoring the Philpot family for counseling services. In April 2010, Marshana was hospitalized for failure to thrive. When she was discharged, DCFS ordered that she live with her aunt, Marlene Parsons. Under Ms. Parsons's care, the child began to thrive. Eventually, though, the child was returned to the care of her mother. According to the complaint, the child drowned in July 2010 when Lashana left her unattended while bathing her. The complaint further alleges that One Hope failed to protect Marshana from abuse or neglect, and should not have allowed Marshana to be returned to her mother because of her unfavorable history and her failure to complete parenting classes.
¶ 5 During the course of this litigation, attorneys for the Public Guardian deposed the executive director of One Hope, who revealed the existence of a "Priority Review" report regarding Marshana's case. According to the director, One Hope has a "continuous quality review department" which investigates cases and prepares these reports. The priority review process considers whether One Hope's services were professionally sound, identifies "gaps in service delivery" and evaluates "whether certain outcomes have been successful or unsuccessful." After One Hope refused to produce the report in response to a discovery request, the Public Guardian moved to compel its production. One Hope resisted, asserting that the report was protected from disclosure by the self-critical analysis privilege.
¶ 6 The trial court found that the privilege did not apply and ordered One Hope to produce the priority review report. The court found that One Hope's assertion of the privilege was "respectful" and "in good faith, " but its refusal to produce the report after being ordered to do so was nonetheless contumacious. To facilitate One Hope's request for appellate review of the privilege issue, the court found One Hope's law firm in "friendly" contempt of court and fined it $1 per day. See Dufour v. Mobil Oil Corp., 301 Ill.App.3d 156, 162 (1998) ("The proper procedure to test on appeal a circuit court's discovery order is for the contemnor to request the trial court to enter a citation of contempt."). The fine order was immediately appealable under Supreme Court Rule 304(b)(5) (Ill. S.Ct. R. 304(b)(5) (eff. Feb. 26, 2010)), and when a contempt order based on a discovery violation is appealed, the underlying discovery order is also subject to review (Reda v. Advocate Health Care, 199 Ill.2d 47, 54 (2002)).
¶ 7 ANALYSIS
¶ 8 We generally review discovery orders for abuse of discretion. Sander v. Dow Chemical Co., 166 Ill.2d 48, 66-67 (1995). However, whether a privilege completely insulates particular material from disclosure presents a question of law, which we review de novo. Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶ 27. The parties do not dispute that the self-critical analysis privilege has never been definitively established by any Illinois statute, court rule, or prior state case law.
¶ 9 The self-critical analysis privilege had its genesis in a medical malpractice case, Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970). The Bredice court disallowed discovery of information regarding hospital staff meetings periodically convened to review patient care, because the meetings were not "part of current patient care but are in the nature of a retrospective review of the effectiveness of certain medical procedures, " and because the value of those meetings "would be destroyed if the meetings and the names of those participating were to be opened to the discovery process." Id. at 250. The facts of Bredin have a certain resonance to those presented here, but a review of applicable Illinois law on the topic leads us a contrary result.
¶ 10 One local federal court has explained that to assert the self-critical analysis privilege, a party must show that "(1) the information sought resulted from a self-critical analysis undertaken by the party seeking protection, (2) the public has a strong interest in preserving the free flow of the information sought, (3) the information is of the type whose flow would be curtailed if discovery were allowed, and (4) the document was prepared with the expectation that it would be kept confidential and has in fact been kept confidential." Ludwig v. Pilkington North America, Inc., No. 03 C 1086, 2004 WL 1898238, at *2 (N.D. Ill. Aug. 13, 2004).
¶ 11 The Ludwig court further explained that the privilege "is intended to encourage companies to engage in candid and often times critical internal investigations of their own possible wrong doings." Id. at *1. However, the court cautioned that because of the pressing need to obtain the truth through the discovery process, "courts have been somewhat hesitant to embrace the self-critical analysis privilege and have often qualified their uses of the privilege with phrases like 'assuming that the self-critical analysis privilege exists' or have noted that other courts have questioned the existence of such a privilege altogether." Id. As is clear from Bredin, Ludwig, and ...