Transcript ISSUES AND TECHNIQUES IN EARLY CASE PREPARATION: …

October 6, 2010
Donald Patrick Eckler
Pretzel & Stouffer Chtd.
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A.
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General Principles
In pre-suit investigation it is imperative that the
communications stay confidential or else they are
subject to disclosure.
After incidents potential
defendants often conduct investigations that are
required to be disclosed because they were
conducted without the cloak of privilege.
Illinois courts narrowly construe the assertions of
attorney-client privilege and the work-product
doctrine.
Archer Daniels Midland Company v.
Koppers Company, Inc., 138 Ill.App.3d 276, 278 (1st
Dist. 1985).
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To be entitled to the protection of the attorney-client
privilege, a claimant must show that the statement
originated in confidence that it would not be disclosed,
was made to an attorney acting in his legal capacity for
the purpose of securing legal advice or services, and
remained confidential. Rounds v. Jackson Park Hosp., 319
Ill.App.3d 280, 285-86 (1st Dist. 2001).
Not every disclosure from client to attorney is entitled to
protection from discovery. The attorney-client privilege
protects only those disclosures necessary to obtain
informed legal advice which might not have been made
absent the privilege. Cangelosi v. Capasso, 366 Ill.App.3d
225, 228-29 (2nd Dist. 2006).
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With respect to corporate entities, Illinois employs a
version of the control group test. Consolidation Coal
Company v. Bucyrus-Erie Company, 89 Ill.2d 103,
118-19 (1982). Under the Illinois formulation of the
control group test, the following analysis applies:
 As a practical matter, the only communications that are
ordinarily held privileged under this test are those made by top
management who have the ability to make a final decision
rather than those made by employees whose positions are
merely advisory. We believe that an employee whose advisory
role to top management in a particular area is such that a
decision would not normally be made without his advice or
opinion, and whose opinion in fact forms the basis of any final
decision by those with actual authority, is properly within the
control group. However, the individuals upon whom he may
rely for supplying information are not members of the control
group.
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The control group test adopted by the Illinois courts
stands in stark contrast to the United States Supreme
Court’s ruling in Upjohn Co. v. United States, 449 U.S.
383 (1981).
In Upjohn, the United States Supreme Court rejected
the control group test holding that the test “frustrates
the very purpose of the privilege by discouraging
communication of relevant information.” Id. at 392.
Specifically, the Court concluded that the privilege
can extend to any employee who communicates with
counsel at the direction of her superiors, regarding
matters within the scope of her duties. Id. at 394.
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The Illinois Supreme Court has refused to follow Upjohn
and continues to adhere to the more limited control group
test because it believes that the control group test
“strike[s] a reasonable balance by protecting consultations
with counsel by those who are the decision makers or
those who substantially influence corporate decisions and
by minimizing the amount of relevant factual material
which is immune from discovery.” Consolidation Coal, 89
Ill.2d at 118-119.
The Illinois Supreme Court’s emphasis on the disclosure of
relevant information was paramount to its decision, while
the United States Supreme Court’s ruling rested on its
desire for communication. This difference in approach is
telling and instructive for the analysis to follow.
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The threshold consideration is to determine whether
an individual is a member of the control group.
Under Consolidation Coal, a person is deemed within
the control group if: (1) the agent served as an
advisor to top management of the corporate client;
(2) this advisory role was such that the corporate
principal would not normally have made a decision
without the agent's advice; and (3) the agent's
opinion or advice in fact formed the basis of the final
decision made by those with actual authority within
the corporate principal.
Archer Daniels Midland
Company, 138 Ill.App.3d at 279-280.
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In addition, merely because an employee supplies information or
facts to top management, that does not place that individual in
the control group. Id. The rule under Illinois law is such that
with respect to some issues an individual may be a member of
the control group, but with respect to others that same
individual may not be in the control group.
In order to determine who is and who is not a member of the
control group Illinois courts have looked at the role the
individual played in the organization and not that individual’s
title. In Knief v. Sotos, 181 Ill.App.3d 959, 964 (2nd Dist. 1989)
the court held that a head waitress and a bar manager were not
in the control group with respect to litigation decisions, and
therefore, those individuals’ communications with counsel
representing the restaurant/bar were not protected from
disclosure.
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In order meet the burden of establishing that an individual
is in the control group the proponent of the privilege must
supply facts to establish the basis for the assertion. In
Midwesco-Paschen Joint Venture for Viking Projects v. Imo
Industries, 265 Ill.App.3d 654 (1st Dist. 1994), the court
considered the claim that a field service manager in charge
of an allegedly defective product sold to plaintiff was in
the control group.
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The court found that the manager was a member of the
control group based on testimony which established that
the manager had direct managerial responsibility over the
subject product, and that advice from that manager was
obtained with respect to liability for the subject product.
Midwesco-Paschen, 265 Ill.App. at 663; see also,
Mlynarski, 213 Ill.App.3d at 431-432.
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The work product doctrine protects “material
prepared by or for a party in preparation for
trial”
that
contains
“theories,
mental
impressions, or litigation plans of the party's
attorney.” See, Ill. Sup. Ct. Rule 201(b)(2).
Materials are protected if they are prepared
for any litigation or trial as long as they were
prepared by or for a party to the subsequent
litigation. Fischel & Kahn, Ltd v. van Straaten
Gallery, Inc., 189 Ill.2d 579, 591 (2000).
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What constitutes “work product” under Illinois Rules is narrower
than what is protected from discovery in the federal system.
Milynarski v. Rush-Presbyterian St. Lukes Med. Center, 213
Ill.App.3d 427, 432 (1st Dist. 1991).
Illinois only protects “opinion work product,” i.e., matter which
discloses the theories, mental impressions or litigation plans of a
party’s attorney. Id. Examples of documents prepared “in
preparation for trial” include:
Memoranda made by counsel of his impression of a prospective
witness, as distinguished from verbatim statements of such
witness, trial briefs, documents revealing a particular marshaling
of the evidentiary facts for presentment at the trial, and similar
documents which reveal the attorney's ‘mental processes' in
shaping his theory of his client's cause. Monier v. Chamberlain,
35 Ill.2d 351, 359-60 (1966).
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Investigations conducted by insurers may be
protected from disclosure. People v. Ryan, 30
Ill.2d 456 (1964).
Restrictions on insurer-insured privilege exist
to limit the privilege to a communication
where the duty to defend has arisen.
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In view of the narrow construction of
privileges under Illinois law, investigations
must be undertaken carefully and should be
done with counsel involved.
If counsel is not involved either in the
conduct of the investigation or in the drafting
of any report, it may be subject to disclosure
and even if counsel is involved, depending on
who counsel spoke to, it may be subject to
disclosure.
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A.
Can the case be transferred to another court?
1.
Is there diversity?
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Corporate defendants have two places of
residence 1) where their principle place of
business is and 2) where they were incorporated
Under the recent United States Supreme Court
decision of Hertz v. Friend, 559 U.S. _____ (2010),
the court’s now apply the “nerve center” test.
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Confirm the place of the defendant’s place of
incorporation by using Secretary of States’
websites
Issue a request to admit to the plaintiff to
confirm amount in controversy
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In order to establish venue the plaintiff must
show one of the factors under 735 ILCS 5/2-104
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Check where each defendant was served
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Check where any corporate defendant has a
registered agent. You should advise clients not
to have their registered agent in counties in
which they do not want to litigate.
Analyze where the corporate defendants “do
business”
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The Supreme Court in The Baltimore & Ohio Railroad
Company v. Mosele, 67 Ill.2d 321, 329-330 (1977) has
held that in order to lay venue based on doing business it
must be established that:
quantitatively more business activity within the county
must be demonstrated than where the defendant gas
transacted business within the State of purposes of service
of process. The defendant must, in short, be conducting
its usual and customary business within the county within
which venue is sought. In the words of one Federal court
faced with a similar problem of construction ‘the activity
must be of such a nature so as to localize the business
and make it an operation within the district.’ (emphasis
added)
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Only
sales
establishes
“doing
business.”
soliciting business in a county does not establish
doing business in that county for purposes of
venue.
Gardner v. International Harvester
Company, 113 Ill.2d 535, 541 (1986).
Further, the purchase of materials from suppliers
in a county does not establish venue in that
county because those purchases are merely
incidental to the business activities. Id.
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Contact witnesses indicated on the police report to
determine where they reside and whether it would be
convenient for them to travel to the place where the
trial is to occur. Get an affidavit of these individuals.
It is important to be mindful of Rule 4.3:
In dealing on behalf of a client with a person who is
not represented by counsel, a lawyer shall not state
or imply that the lawyer is disinterested. When the
lawyer knows or reasonably should know that the
unrepresented person misunderstands the lawyer's
role in the matter, the lawyer shall make reasonable
efforts to correct the misunderstanding.
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Issue discovery to the plaintiff, including
interrogatories, requests for production, and
requests to admit. See Supreme Court Rule
187.
Look at the Annual Report of the
Administrative Office of the Illinois Courts to
determine if the forum you want to move the
case to is moving cases along faster than the
forum you want to move the case from.
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1.
Freedom of Information Act requests
 Allows you to seek documents without the other
side not knowing what you are looking for or
why
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2.
Obtain information about the plaintiff’s 2622 expert
Conduct an IDEX and Jury Verdict search
for the expert
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3.
Speak with witnesses
4.
Obtain police reports
5.
Obtain a jury verdict report on similar
cases to assist in reserve setting
6.
Begin the process of finding experts that
may be of assistance by performing a jury
verdict search or looking online
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