Last week, the Illinois Supreme Court heard argument in a case being closely watched by the civil defense bar: Harris v. One Hope United, Inc.  Harris poses a simple question: does Illinois recognize the self-critical analysis privilege?  Our detailed summary of the facts and lower court rulings in Harris is here.

As a general rule, courts require three elements for proof of the self-critical analysis privilege: (1) the information sought comes from a critical self-analysis undertaken by the party seeking protection; (2) the public has a strong interest in preserving the free flow of the type of information sought; and (3) the information is of a type whose flow would be curtailed if discovery were allowed.

The defendant in Harris is a private contractor which provides services to troubled families working with the state Department of Child and Family Services.  DCFS received a complaint in late 2009 alleging neglect and abuse of a small child.  DCFS assigned the matter to the defendant, which commenced an investigation.  Two months later, the child was hospitalized, and upon release, was sent to live with her aunt.  The child was soon returned to her mother, and not long after, was accidentally drowned.

The plaintiff – the Public Guardian of Cook County – sued the defendant and others for wrongful death.  The plaintiff alleged that the defendant was negligent in permitting the child to be returned to her mother.  During a deposition, the executive director of the defendant disclosed the existence of a “continuous quality review department” which investigates cases and prepares reports about past cases.  The defendant refused to produce the report, the plaintiff moved to compel production, the defendant opposed, and the trial court compelled production.  On appeal following entry of a “friendly contempt,” the Appellate Court affirmed.

Counsel for the defendant began.  Counsel argued that she was not asking the Court to rule on all aspects of self-critical analysis.  Rather, the appellant was limiting her argument to a single type of report – the peer review analysis.  The trial judge was supportive of the privilege claim, counsel argued, but felt constrained by the lack of law on the subject.  Similarly, the First District was sympathetic, but said it had no power to find a privilege with no law available on the subject.  Counsel argued that the analysis begins with Rule 501, which allows the Court to determine privileges based on the common law.  Justice Thomas noted that the legislature has already enacted a type of self-critical analysis privilege in the Medical Studies Act, and counsel responded that the privilege applied only to hospitals, physicians and certain qualifying parties.  Justice Thomas asked whether the Court would simply be legislating if it were to add to the privilege the legislature created.  Counsel answered that the statute was limited in scope.  The DCFS has sovereign immunity.  The appellant was doing exactly what the DCFS did, with none of the protections.  Counsel argued that the Court should look at the four-part test for finding a privilege.  This is not about the search for truth, counsel argued; the plaintiff already has all the witnesses available.  Counsel argued that the appellee wanted a smoking gun – something in which a witness said “we made a mistake.”  The appellant’s quality control reports are made with an expectation of confidentiality.  Counsel argued that denial of the privilege involves a slippery slope.  Justice Theis asked counsel to address the Child Death Review Team Act – given the existence of the Act, wasn’t an investigation inevitable?  Counsel answered that only the DCFS was subject to the privilege in the Act.  Justice Theis pointed out that the statute seemed to cover everyone involved in the mandated investigations.  Counsel agreed that the DCFS’s report was privileged by statute.  Justice Theis asked whether there would be an investigation under the Act regardless of whether the privilege was extended.  Counsel answered that the police and the DCFS all investigated the incident.  The appellant was seeking to privilege the internal investigation.  The appellant’s participation in the DCFS’s investigation was not privileged.  Justice Theis suggested that counsel was argued that without the privilege, nobody would investigate the incident.  Counsel responded that the appellant investigates incidents quickly in order to promote safety and learn from incidents.  But there were no facts in the reports that plaintiff doesn’t already have, and no witnesses the plaintiff doesn’t already have available.  Justice Thomas asked whether creating new privileges was a matter for the legislature.  Counsel responded that although there might be a need for a complete legislative look at these types of privileges, the appellant was not in a position to lobby for the legislative fix.  Nevertheless, the Court had the power to grant a common law privilege.  Chief Justice Garman asked whether the privilege would be limited to discussions after the accident, and counsel said yes.  Justice Freeman suggested that it was unclear whether the appellant had returned the child to its mother.  Counsel responded that the DCFS was responsible for either withdrawing the child or returning it to the home; the appellant merely oversaw the mother’s activities and tried to help her keep the family intact.  Justice Freeman asked whether the court had ordered the return of the child.  Counsel said no, the DCFS had placed the child with its mother, and the case worker had visited each week to look for signs of problems.  Justice Thomas asked why the plaintiff shouldn’t have the right to impeach witnesses who went on the stand and claimed that there was nothing more the defendant could have done.  Counsel answered that plaintiffs could depose witnesses, they just couldn’t examine them based on the investigative report, because its value outweighed the loss of any evidence.

Counsel for the plaintiff followed.  Counsel argued that the privilege doesn’t exist at common law or in the statutes.  The decisions of the Court, counsel argued, are clear that creating new privileges is the business of the legislature.  Rule 501 merely gives the Court the right to administer privileges which exist, not to create new ones.  Justice Karmeier asked whether it was true that absent the defendant’s self-critical analysis, there would be no possibly damaging opinions for the plaintiff to discovery.  Counsel agreed that was true.  Justice Karmeier asked if the Court should be concerned about that as a matter of public policy.  Counsel answered that it was not an issue since the privilege doesn’t exist.  Justice Karmeier asked, if the plaintiff has all the facts, which he would need these opinions.  Counsel responded that the public policy of the state is that full investigation is imperative with respect to the deaths of children.  Justice Karmeier asked, if the Court agrees with him that there is no privilege, whether there can be any limitations placed on the use of the report.  Counsel answered that that would be up to the trial court.  What the case is really about, according to counsel, is full disclosure with respect to the death of an eight-month old girl.  Counsel argued that any contradictions in the report would be critical evidence regarding finding out what really happened.  Justice Karmeier suggested that production was appropriate for finding out what really happened, but said that his concern is about post-remedial measures – why would that kind of information be admissible?  Counsel responded that the lower court could have blocked disclosure of parts of the report, had it chosen to do so, by relying on the privilege for remedial measures.  Justice Karmeier asked if counsel’s suggestion that the report couldn’t be used with respect to remedial measures was the same as saying there was a privilege.  Counsel said no, a privilege is far more encompassing, and with much more of a chilling effect.  Justice Karmeier asked if the only thing in the report aside from facts plaintiff has already is remedial measures, is that admissible?  Counsel answered that’s up to the trial court.  Chief Justice Garman asked whether a finding of no privilege would discourage these kinds of self-critical analyses.  Counsel answered that given the public policy favoring full disclosure, there is no legitimate expectation of non-disclosure in these investigations.  The Chief Justice pointed out that the DCFS’s investigation would be shielded from disclosure, and counsel agreed.  The Chief Justice agreed that the DCFS had not, in fact, undertaken this investigation, but for many years, they had.  It was a new circumstance that a subcontractor would pursue these investigations.  Did counsel nevertheless believe no privilege existed?  Counsel said yes, the trend around the country is moving away from any recognition of the self-critical analysis privilege based on the proposition that truth-seeking is paramount.  Justice Karmeier asked whether the Court should take into consideration how its decision would affect services to children, and counsel said yes.  Justice Karmeier asked whether the Court had the power to create a privilege which the legislature to date had not, and counsel answered that earlier precedent for that proposition was quite limited.  Justice Karmeier suggested that counsel’s argument suggests that there might be cases where it is important.  Counsel answered that there are cases in which there might arguably be a basis for finding a privilege, but not on the facts at bar.

In rebuttal, counsel for the defendant argued that more cases were being published recognizing the privilege than rejecting it, but the Court should focus solely on Illinois.  The defendant’s case workers don’t know anything about admissibility, counsel argued – they’re just asked to be critical and honest, and that’s all that’s necessary for the privilege to attach.  Counsel argued that the persons involved in the investigation couldn’t give opinions on the stand anyway, and they aren’t fact witnesses either, but there would nevertheless be a very real chilling effect if everything in the report became admissible in court.  The case wasn’t about whether the truth would come out, counsel argued; the plaintiff has the DCFS records and all the fact witnesses.  Justice Thomas asked whether, if the Court finds for the defendant, the decision would stand for the proposition that groups without the wherewithal to get relief from the legislature can come to the Court.  Counsel responded that the Court has always had its door open with regard to fashioning common-law privileges, but if the Court concluded that there was insufficient basis in the record to find a privilege as a matter of law, it should remand the case with guidance for the trial court.

We expect Harris to be decided in three to six months.

Image courtesy of Flickr by Stephen Dann (no changes).