ROBERT F. HARRIS, Appellee,
ONE HOPE UNITED, INC., et al., Appellants
Esther Joy Schwartz, Richard W. Schumacher and Jamie L. Budler, of Stellato & Schwartz, Ltd., of Chicago, for appellant.
Gary W. Klages, of Law Office of Daniel E. Goodman, LLC, of Rosemont, for appellee.
John F. Watson, of Craig & Craig, LLC, of Mattoon, and Craig Unrath, of Heyl, Royster, Voelker & Allen, of Peoria, for amicus curiae Illinois Association of Defense Trial Counsel.
JUSTICE KARMEIER delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.
[¶1] In this case, the appellant, One Hope United, Inc. (One Hope), asks us to recognize a new privilege in Illinois: a self-critical analysis privilege. We decline to do so, as we consider the matter more appropriately a subject for legislative action. Thus, we affirm the judgment of the appellate court, which similarly deferred this question of public policy to the legislature. 2013 IL App. (1st) 131152, ¶ 1, 377 Ill.Dec. 851, 2 N.E.3d 1132.
[¶3] One Hope contracts with the Illinois Department of Children and Family Services (DCFS) to provide services with the objective of 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 about Lashana's neglect and/or abuse of Marshana. DCFS investigated the complaint and assigned the matter to One Hope. One Hope began monitoring the Philpot family for counseling services. At one point, Marshana was hospitalized for failure to thrive. When she was discharged, DCFS ordered that she live with her aunt, Marlene Parsons. Under Ms. Parsons' care, the child began to thrive. Eventually, Marshana was returned to the care of her mother. According to the complaint, the child subsequently drowned when Lashana left her unattended while bathing her. The complaint 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] In 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 circuit court of Cook County determined that the privilege did not apply and ordered One Hope to produce the priority review report. The court found that One Hope's refusal to produce the report after being ordered to do so was 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. The fine order was immediately appealable under Supreme Court Rule 304(b)(5) (Ill. S.Ct. R. 304(b)(5) (eff. Feb. 26, 2010)). When a contempt order based on a discovery violation is appealed, the underlying discovery order is also subject to review. See Norskog v. Pfiel, 197 Ill.2d 60, 69, 755 N.E.2d 1, 257 Ill.Dec. 899 (2001).
[¶7] SELF-CRITICAL ANALYSIS PRIVILEGE
[¶8] The self-critical analysis privilege appears to have originated in Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970), a medical malpractice case. In Bredice, the court held that a decedent's administratrix in a medical malpractice suit could not obtain discovery of the minutes and reports of a hospital staff review meeting. The court stressed that the confidentiality of the medical staff's evaluation of potential improvements in its procedures and treatments was so essential to the self-review process that allowing discovery would chill the candor required for an effective internal review. Id. at 250. In particular, the court recognized that the long-term public benefits of improved health care outweighed the needs of the litigant seeking discovery, and, thus, should not be sacrificed without a showing of good cause. Id. at 251.
[¶9] The fundamental purpose of what has come to be known as a " self-critical analysis privilege" is to protect from disclosure documents that contain candid and potentially damaging self-criticism, where disclosure of those documents would harm a significant public interest. Scott v. City of Peoria, 280 F.R.D. 419, 424 (C.D. Ill. 2011). Although the original purpose of the privilege was to encourage candor when parties sought to improve their own procedures in providing medical care to patients, some federal courts have relied upon the privilege in other factual settings. When expanded to other circumstances, courts generally use it to encourage activities that will protect human life or public health. Deel v. Bank of America, N.A., 227 F.R.D. 456, 458 (W.D. Va. 2005). Whether the privilege applies in a particular fact situation depends in significant part on balancing the public interest furthered by self-assessment against the interest in pursuing the search for truth. Scott, 280 F.R.D. at 424.
[¶10] The requisites for application of, what the Deel court described as, " this purported privilege" ( Deel, 227 F.R.D. at 458) have been variously set out as either a three- or four-part test. In Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423, 425-26 (9th Cir. 1992), the Ninth Circuit Court of Appeals noted that the " generally required" elements, " if such a privilege exists," are as follow: (1) the information must result from a critical self-analysis undertaken by the party seeking protection; (2) the public must have a strong interest in preserving the free flow of the type of information sought; (3) the information must be 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.
[¶11] As the Deel and Dowling courts' comments suggest, whether the privilege should be, or has been generally, recognized in the federal courts is a matter of disagreement. As a district court has recently observed, " the Supreme Court has explicitly declined to introduce a peer-review privilege--sometimes referred to as a 'self-critical analysis' privilege--into the federal common law," a disinclination which " is consistent with the reluctance of federal courts to contravene the general rule in favor of admissibility by creating new privileges." Williams v. City of Phila., No. 08-1979, 2014 WL 5697204, at *3 (E.D. Pa. Nov. 4, 2014) (citing, inter alia, University of Pennsylvania v. Equal Employment Opportunity Comm'n, 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990), In re Grand Jury, 103 F.3d 1140, 1150, 35 V.I. 516 (3d Cir. 1997), and United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (cautioning that privileges " are not lightly created nor expansively construed" )). Lower federal courts appear to have exercised caution in this regard. See generally Alaska Electrical Pension Fund v. Pharmacia Corp., 554 F.3d 342, 351 n.12 (3d Cir. 2009) (" The self-critical analysis privilege has never been recognized by this Court and we see no reason to recognize it now." ); Williams, 2014 WL 5697204, at *3 (rejecting a contention that " there is a 'developing trend' in the federal courts toward *** recognition" of the privilege); Granberry v. Jet Blue Airways, 228 F.R.D. 647, 650 (N.D. Cal. 2005) (stating that no circuit court of appeals had explicitly recognized the self-critical analysis privilege); Union Pacific R.R. Co. v. Mower, 219 F.3d 1069, 1076 n.7 (9th Cir. 2000) (" This court has not recognized this novel privilege." ); Medina v. County of San Diego, No. 08cv1252, 2014 WL 4793026, at *7 (S.D. Cal. Sept. 25, 2014) (" The Ninth Circuit does not recognize the ...