Creating a new critical-self-analysis privilege is the job of the legislature, not the judiciary, the Illinois Supreme Court rules recently.

On March 19, 2015, the Illinois Supreme Court affirmed the appellate court's refusal to recognize the so-called "self-critical analysis privilege" in Harris v. One Hope United, Inc., 2015 IL 117200. Instead, the court left it to the legislature to decide whether to create the new evidentiary privilege.

Although other Illinois opinions have addressed the privilege, Harris "is a fascinating case because of its description of the interaction between the legislature and the courts in the development of evidence law," says Ottawa attorney Michael Reagan.

In Harris, an organization called One Hope, which contracts with the Illinois Department of Children and Family Services, was the subject of a wrongful death lawsuit related to one of the children in its care. During the discovery process, One Hope's executive director was deposed. The deposition testimony revealed that One Hope had prepared a "Priority Review" report about the deceased child's case.

The Cook County Public Guardian asked One Hope to produce the report. One Hope refused, claiming that the document was protected from disclosure by the self-critical analysis privilege. A motion to compel soon followed.

The trial court found that the privilege did not apply, ordering the production of the report. One Hope refused, even in the face of the court's order. The trial court found One Hope to be in "friendly" contempt of court and fined it $1 per day. This finding paved the way for One Hope to file its appeal and resolve the issue of whether its asserted privilege applied.

'[A] matter for the legislature'

The so-called self-critical analysis privilege has its roots in the federal case Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970). As the Harris court notes, "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." Harris, 2015 IL 117200, ¶ 9. The Harris court said that whether a privilege applies involves balancing the "public interest furthered by self-assessment against the interest in pursuing the search for truth." Id. The court then analyzed the Illinois appellate opinions that have addressed the self-critical analysis privilege.

Reagan said that the case most key to the Harris court's decision not to recognize the privilege is People ex rel. Birkett v. City of Chicago, 184 Ill. 2d 521 (1998). This is because Birkett "lays out the presumption that the creation of a privilege is a matter for the legislature, but also enumerates factors to consider" when a party asserts a new evidentiary privilege, Reagan said.

Those factors are as follows: "1) the communications originated in a confidence that they will not be disclosed; 2) this element of confidentiality is essential to the full and satisfactory maintenance of the relation between the parties; 3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and 4) the injury that would inure to the relation by disclosure would be greater than the benefit thereby gained for the correct disposal of litigation." Harris, 2015 IL 117200, ¶ 27 (emphasis in original). Reagan points out that Harris "solidifies Birkett as the key source of guidance" for this issue.

The Harris court spends a considerable amount of time analyzing existing Illinois statutes to determine whether the General Assembly could have intended to create a self-critical analysis privilege. Reagan cautions, however, that this does not mean Harris requires an overwhelming emphasis on statutory pronouncements. "Harris confirms existing law. The creation of a privilege is a job for the legislature because it includes balancing policies. Harris confirms the existing law, which looks to legislative enactments for indicia of public policy," he says.

An all-or-nothing proposition

The Harris opinion also creates an "interesting circularity" with Illinois Rule of Evidence 501, which is the general rule for establishing whether an evidentiary privilege exists. Rule 501 states that unless the U.S. Constitution, the Illinois Constitution, or a statute or Illinois Supreme Court Rule specifically establishes an evidentiary privilege, courts are to look to the common law for guidance.

Birkett (and thus Harris) instructs courts to look to statutory law and other elements when determining whether an evidentiary privilege exists. As such, Harris and Rule 501 do not conflict, but arrive at similar results.

Reagan also notes that the Harris court specifies that the Birkett test is an all-or-nothing proposition. Each of its elements must be satisfied for a privilege to exist. Harris 2015 IL 117200, ¶ 27.

Finally, even though the Harris court does not specifically decide issues related to contempt findings, it is a "good road map" for how lawyers should handle a discovery dispute where the underlying order compelling production will be appealed, Reagan said. He observes that lawyers frequently run into the question. A finding of "friendly" contempt allows litigants to quickly resolve these questions.