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Selby v. O'Dea

Appellate Court of Illinois, First District, Fourth Division

December 7, 2017, Decided

No. 1-15-1572

Opinion

 [**1146]  [****657]   JUSTICE ELLIS delivered the judgment of the court, with opinion.

Presiding Justice Burke and Justice McBride concurred in the judgment and opinion.

OPINION

 [*P1]  When parties on the same side of a lawsuit wish to strategize to defeat their common litigation opponent, they may meet together and share information that would otherwise be privileged under the attorney-client or work-product doctrines. A lawyer may share privileged information from his or her client with the other party's lawyer. One party may speak to the other party's lawyer. One client may speak to the other client, in the presence of the lawyers. When these communications occur, the parties risk waiving privileges because they are disclosing privileged information to third parties—the other client and the other client's lawyer.

 [*P2]  This case [***2]  requires us to decide whether two codefendants to a lawsuit waived these privileges when they met and shared information about that lawsuit as part of a "joint defense agreement" they executed.

 [*P3]  Federal courts and many state courts have recognized an exception to the waiver rule in this context, protecting the confidentiality of these joint communications as to third parties. Other states have codified this exception to the waiver rule into statute. Surprisingly, no published decision  [**1147]   [****658]  in Illinois has ever decided whether parties with a common interest in defeating a litigation opponent may share and pool information without waiving their attorney-client and work-product privileges as to third parties.

 [*P4]  After considering our supreme court's decisions on related issues and taking into account case law from other jurisdictions, we likewise recognize a common-interest exception to the waiver rule. As in virtually every other jurisdiction, we hold that ] coparties in a case who agree to share information pursuant to their common interest in defeating their litigation opponent do not waive either the attorney-client or work-product privilege when they do so.

 [*P5]  While we agree with the trial court's [***3]  recognition of this common-interest exception to the waiver rule, we remand this matter to the trial court to conduct an in camera, communication-by-communication review of the challenged conversations involving the codefendants and their attorneys. We vacate the trial court's dispositive rulings—the dismissal of one count, the grant of summary judgment on two others—pending the outcome of the in camera review, given the possibility that additional facts may become discoverable after that review.

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2017 IL App (1st) 151572 *; 90 N.E.3d 1144 **; 2017 Ill. App. LEXIS 749 ***; 418 Ill. Dec. 655 ****

FRANK SELBY, MARTIN YOUNG, ADRIANA LOPEZ, and KATHERINE SCHEIWE, n/k/a Katherine Polk, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. JAMES M. O'DEA, Individually and d/b/a James M. O'Dea & Associates, and STATE FARM MUTUAL AUTO INSURANCE COMPANY, Defendants, (State Farm Mutual Auto Insurance Company, Defendant-Appellee).

Subsequent History: Decision reached on appeal by, Remanded by Selby v. O'Dea, 2020 IL App (1st) 181951, 2020 Ill. App. LEXIS 224 (Mar. 31, 2020)

Prior History:  [***1] Appeal from the Circuit Court of Cook County. No. 10 CH 43684. Honorable Sebastian T. Patti, Honorable Richard J. Billik, & Honorable Rodolfo Garcia Judges Presiding.

Disposition: Affirmed in part, vacated in part, remanded with instructions; motion denied.

CORE TERMS

common-interest, communications, common interest, parties, attorney-client, waiver rule, lawsuit, insured, privileged, discovery, trial court, joint defense, lawyers, waiving, courts, defeat, confidential, coparties, codefendants, disclosure, conversations, third party, interrogatory, cases, work-product, protective order, protects, summary judgment, discloses, subrogation

Evidence, Privileges, Attorney-Client Privilege, Waiver, Civil Procedure, Appeals, Standards of Review, De Novo Review, Privileges, Scope, Abuse of Discretion, Discovery & Disclosure, Discovery, Protective Orders, Discovery

Evidence, Privileges, Attorney-Client Privilege, Waiver, Civil Procedure, Appeals, Standards of Review, De Novo Review, Privileges, Scope, Abuse of Discretion, Discovery & Disclosure, Discovery, Protective Orders, Discovery