Privileges

• Author: Jennifer Duncan-Brice
• Pages: 5-52

21-5

Chapter 21

Privileges

QUICK VIEW

Definitions: A privilege is the right of a person to refuse to disclose (or to compel others to refuse to disclose)

certain information that would otherwise be obtainable. For public policy reasons, the law has determined to

permit certain kinds of information to remain secret. For example, confidential communications between attor-

ney and client, or physician and patient , or with a member of the clergy, or between spouses have been deemed

“privileged” by the Legislature. In addition, some kinds of information — such as tax returns, trade secrets and

the like — are so inherently confidential that the courts have erected barriers to their disclosure.

Scope of Chapter: Rules and techniques applicable to all privileges. Specific rules and techniques applicable

to the following privileges: attorney-client, work product, common interest, self incrimination, trade secrets,

physician-patient, mental health communications, spousal communications, communications to clergy, and

news media sources.

Purposes and Policies: Privileges arise in a variety of contexts and are based on different policy goals. Some of

the main public policies regarding privileges are to:

• Encourage people to seek professional advice and freely disclose information to the adviser without fear

the facts will be made public.

• Encourage open communications between husband and wife, thereby preserving the sanctity of marriage.

• Prevent competitors from gaining access to the crux of the business operation or method of gaining access.

• Prevent excessive or brutal persuasion of witnesses to force testimony or statements that may or may

not be true.

Statutes and Rules: 735 ILCS 5/8-801 (husband/wife); 735 ILCS 5/8-802 (health practitioner/patient) 735

ILCS 5/8-802.1 (rape crisis personnel); 735 ILCS 5/8-802.2 (victims of violent crimes); 735 ILCS 5/8-803

(clergy); 735 ILCS 5/8-901-5/8-909 (reporter); 735 ILCS 5/8-910 (voter); 735 ILCS 5/8-911 (interpreter); 225

ILCS 450/27 (accountant/client); 735 ILCS 5/8-2101 (Medical Studies Act); 740 ILCS 110/3(a) (Mental Health

and Developmental Disabilities Confidentiality Act); 765 ILCS 1065/1 (Illinois Trade Secrets Act). SCR 201(n)

(privileges generally); SCR 222(h) (limited and simplified discovery).

Related Topics: All Discovery, Ch 20; Production of Documents and Other Things, Ch 22; Interrogatories, Ch

25; Requests for Admissions, Ch 26; Discovery Disputes, Ch 27.

IllInoIs PretrIal PractIce 21-6

TABLE OF CONTENTS

I. General Concepts

A. Overview

1. DEFINITIONS, PURPOSES

§21:01 Privilege Defined

§21:02 Qualified vs. Absolute

§21:03 Purposes

§21:04 Defeating Privilege

2. CREATION, DURATION, REMEDIES FOR WRONGFUL DISCLOSURE

§21:10 Privileges Arise as a Matter of Law

§21:11 Duration

§21:12 Remedies After Wrongful Disclosure

3. IMPACT ON DISCOVERY

§21:20 Privileged Information Not Freely Discoverable

§21:21 Requesting Privileged Information

§21:22 Ex Parte Requests

4. GOVERNING LAW & CONSTRUCTION

§21:30 Statutes and Rules

§21:31 Constitutional Provision

§21:32 Common Law

§21:33 Construed Narrowly

B. Asserting a Privilege

§21:40 Options

§21:41 Who Can Assert Privilege

§21:42 Procedure to Assert Privilege

§21:43 Deadline for Asserting Privilege

§21:44 Privilege Log

C. Waiving a Privilege

1. BASIC POINTS

§21:50 Analytical Approaches to Waiver

§21:51 Waiver Is Final

§21:52 Waiver Does Not Authorize Ex Parte Discovery

§21:53 Extent of Waiver

§21:54 Place at Issue

§21:55 Doctrine of Dual Representation

§21:56 Crime Fraud Exception

2. BY WHOM

§21:60 Waiver by Holder

§21:61 Authorized Waiver by Agent

§21:62 Unauthorized Disclosure by Agent

§21:63 By Attorney

§21:64 Disclosure to Experts

21-7 PrIvIleges

3. HOW

a. Intentional Disclosure

§21:70 Statement of Rule and Rationale

§21:71 With Knowledge of the Privilege

§21:72 With Intent to Disclose

§21:73 Without Coercion

§21:74 Partial Disclosure

§21:75 Extrajudicial Disclosure

b. Implied Intent

§21:80 Intent Implied From Conduct

§21:81 Negligent Disclosure

c. Placing Privileged Matter at Issue

§21:90 Reliance on Privileged Matter

§21:91 Health Care Providers

§21:92 Interests of Justice

§21:93 Derivative Action by Shareholder Against Corporation

D. Compelling Disclosure

§21:100 Motion Procedure

§21:101 Burden on Party Claiming Privilege

§21:102 Court Review of Material

§21:103 Scope of Compelled Production

§21:104 Interlocutory Appeal

II. Attorney-Client Communications

A. General Points

§21:110 Basic Rule

§21:111 Survival of Privilege

§21:112 Educate Client

§21:113 Lay Groundwork for Motions

§21:114 Conflicts of Law

§21:115 Burden

§21:116 Subject Matter Waiver

B. Elements of a Privileged Communication

1. MUST BE A “COMMUNICATION”

§21:120 Definition and Form of Communication

§21:121 Existence of Communication Not Privileged

§21:122 Facts Communicated Not Privileged

§21:123 Client’s Identity and Address Not Privileged

2. MUST BE IN THE COURSE OF PROFESSIONAL EMPLOYMENT

§21:130 Attorney-Client Relationship Necessary

§21:131 Payment Not Determinative

§21:132 Applicable to Non-Party

§21:133 Representation Not Determinative

3. MUST BE A CONFIDENTIAL COMMUNICATION

a. Client; Attorney; Their Agents

§21:140 Requirement