Bethany Krajelis Mar. 28, 2014, 6:08pm

The Illinois Supreme Court on Wednesday agreed to review a wrongful death case that an appeals panel noted presents a “rather novel issue” over whether the state courts recognize the self-critical analysis privilege.

This case — Robert F. Harris, etc., et al., v. One Hope United, Inc.—is one of nine the justices agreed to hear arguments in. They denied 200 petitions for leave to appeal.

Five of the nine cases the court will soon weigh in on are civil matters that range from an insurance dispute over a legal malpractice suit to a consolidated taxpayer claim alleging school district money was spent without proper approval.

The issue over the self-critical analysis privilege, which protects certain documents from disclosure, stems from a wrongful death suit Cook County Public Guardian Robert F. Harris brought as the administrator of seven-month-old Marshana Philpot’s estate.

Marshana died in 2010 when her family was participating in the “Intact Family Services” program with One Hope United, which contracts with the Illinois Department of Children and Family Services (DCFS) to provide services to try to keep troubled families together.

The public guardian filed the suit against One Hope, its employee Pixie Davis and Marshana’s mother, Lashana Philpot.

According to the appellate court opinion, the DCFS received a complaint in 2009 alleging Philpot was neglecting and/or abusing Marshana. The agency investigated the matter and assigned it One Hope, which then began monitoring the Philpot family.

In April 2010, after Marshana was hospitalized for failing to thrive, DCFS ordered that the baby live with her aunt. Although Marshana began to thrive under her aunt’s care, she was eventually returned to her mother.

A few months later in July, according to the public guardian’s complaint, Marshana died after drowning in a bathtub where Philpot left her unattended.

The wrongful death suit alleges that One Hope failed to protect the child from neglect and abuse and shouldn’t have returned her to Philpot.

As part of the litigation, attorneys for the public guardian deposed One Hope’s executive director, who said there was a “Priority Review” report regarding Marshana’s case. The director explained that One Hope has a review department that investigates and prepares these reports, which considers if its services were sound, identifies any gaps in service delivery and evaluates certain outcomes.

One Hope refused to hand over the report in response to a discovery request, spurring the public guardian to ask the court compel its production. One Hope refused again, claiming that the report’s disclosure was protected by the self-critical analysis privilege.

Cook County Circuit Judge Eileen Brewer determined the privilege didn’t apply and ordered One Hope to produce the review report in Marshana’s case.

The appellate court noted in its opinion that Brewer “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.”

As a way to grant One Hope’s request for appellate review of the privilege issue, Brewer found the group’s law firm, Stellato & Schwartz Ltd., in “friendly” contempt of court and fined it a dollar a day. One Hope then appealed the fine order.

The First District Appellate Court in December 2013 vacated the contempt order, but affirmed the Brewer’s ruling requiring One Hope to produce the report after holding that Illinois state courts do not recognize the self-critical analysis privilege.

Justice Mathias Delort delivered the panel’s six-page opinion, in which Justices Maureen Connors and Thomas Hoffman concurred.

“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,” Delort wrote.

He added, “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.”

In its analysis, Delort explains that the self-critical analysis privilege came out of Bredice v. Doctors Hospital, Inc., a 1970 ruling over a medical malpractice case from the District of Columbia’s federal court.

The court in Bredice, according to the opinion,  “disallowed discovery of information regarding hospital staff meetings periodically convened to review patient care,” reasoning that the meetings weren’t part of patient care and the value of those meetings “would be destroyed” if there were “opened to the discovery process.”

Delort wrote that “the facts of Bredice have a certain resonance to those presented here, but a review of applicable Illinois law on the topic leads us a contrary result.”

He goes on to say that in the 2004 ruling in Ludwig v. Pilkington North America, Inc., Chicago’s federal court held that parties seeking to invoke the self-critical analysis privilege must meet several factors, including that the public has an interest in the information and the document was prepared with an expectation it would be confidential.

While the Ludwig court said the privilege aims to encourage companies to engage in critical internal investigations, Delort pointed out that it also cautioned that “courts have been somewhat hesitant to embrace the self-critical analysis privilege.”

As is clear from BrediceLudwig, and similar cases, the self-critical analysis privilege on the federal level is created only by case law and not by federal statutes or specific court rules,” Delort wrote.

In regards to whether the privilege exists in Illinois, Delort wrote that state case law on the issue “is spare, but consistent” and pointed to two instances in which the Second District declined to recognize it, once in the context of the Freedom of Information Act and again in a case seeking records from a religious diocese over abuse.

“One Hope argues that we should decline to follow these Second District cases and find the privilege has evolved from the ‘intersect[ion]’ of Illinois statutory law, public policy, discovery rules and evidence,” Delort wrote.

He added, “For instance, it suggests that shielding self-critical documents would further the purposes of the Child Death Review Team Act. However, a close review of the Act reveals that it encourages, rather than discourages, disclosure of information of the sort sought here.”

On appeal, Delort notes that One Hope made arguments similar to those raised in Bredice, asserting that its priority review process must be kept confidential in order for staff to “freely and candidly” investigate cases and for informants to share information without fear their statements will be made public.

“[W]e believe the overriding need to determine the truth with respect to the cause of death of an infant overrides the desire of One Hope to keep its self-evaluations confidential,” the panel held.

In addition to this case, the Supreme agreed to hear arguments in the following civil cases:

  • Illinois State Bar Association Mutual Insurance Co., v. Law Office of Tuzzolino and Terpinas, etc., et al., a case in which the First District reversed the lower court to say an insurance company must cover the representation of a partner in a Skokie law firm being sued for malpractice.

  • Anthony Lutkauskas et al., etc., v. Dr. Timothy Ricker et al., a case in which the First District affirmed the dismissal of taxpayer suits alleging some employees and board members with the Lemont Bromberek Combined School District 113A spent or allowed others to spend district money without proper approval.

  • People ex rel. Lisa Madigan, etc., v. J.T. Einoder, Inc., etc., et al., a case in which the First District affirmed the lower court’s ruling in a case the attorney general brought over the defendants’ operation of an unpermitted landfill. Part of those rulings included the rejection of attorney general’s argument on cross appeal.

  • William Dennis Huber, v. American Accounting Association, a case in which the Fourth District affirmed the dismissal of the plaintiff’s appeal on the basis his notice didn’t contain an affidavit or certificate as service and thus, was untimely.

The court also agreed to hear People v. Daniel Belknap (Third District); People v. Anthony Boyce (First District); People v. John Willie Jolly, (Fourth District); People v. Johnny Taylor (Fourth District).

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