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Selby v. O'Dea

Appellate Court of Illinois, First District, Third Division

March 31, 2020, Decided

No. 1-18-1951


 [*P1]  State Farm Mutual Auto Insurance Company, represented by attorney James O'Dea, filed subrogation claims against Frank Selby, Martin Young, Adriana Lopez, and Katherine Scheiwe. Those individuals, the plaintiffs in this case, then flipped the script and sued State Farm and O'Dea for fraud, abuse of process, conspiracy (to commit abuse of process), and malicious prosecution. They claim that State Farm and O'Dea conducted a scheme to obtain fraudulent default judgments against plaintiffs by using improper service of process. And they claim they are not alone; they seek to certify a class of former subrogation defendants similarly mistreated.

 [*P2]  Both State Farm and O'Dea filed dispositive motions. O'Dea's [**2]  failed, and plaintiffs' claims against him are still pending in the circuit court. But the trial court granted State Farm's combined motion for dismissal and summary judgment, dismissing the abuse-of-process claims and awarding summary judgment to State Farm on the claims of civil conspiracy and malicious prosecution.

 [*P3]  The first time this matter came before us, a discovery dispute took center stage. Plaintiffs had sought any joint communications between State Farm, O'Dea, and their respective attorneys concerning the defense of this lawsuit. The then-trial judge ruled that those communications were protected by what it called a "joint defense privilege." We agreed that these communications were not subject to disclosure, reasoning that while these joint communications might normally result in the waiver of attorney-client privilege, we would recognize an exception to waiver when the parties were discussing matters of litigation in their common interest. We thus recognized a common-interest exception to the waiver rule, an exception recognized in most jurisdictions throughout the country, but not in Illinois until our decision.

 [*P4]  But while the trial judge ruled generally that these communications [**3]  were protected from disclosure, our view was that the trial court should have conducted an in camera, communication-by-communication review to determine whether each communication was or was not subject to disclosure. As the trial court had not done so, we remanded the matter for that in camera review.

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2020 IL App (1st) 181951 *; 2020 Ill. App. LEXIS 224 **

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).

Prior History:  [**1] Appeal from the Circuit Court of Cook County. No. 10 CH 43684. Honorable Rodolfo Garcia and Raymond Mitchell, Judges Presiding.

Disposition: Affirmed in part, reversed in part, and vacated in part; cause remanded.


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Evidence, Privileges, Attorney-Client Privilege, Waiver, Civil Procedure, Appeals, Appellate Jurisdiction, Interlocutory Orders, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Torts, Intentional Torts, Abuse of Process, Elements, Vicarious Liability, Independent Contractors, Intentional Torts, Record on Appeal, Summary Judgment Review, Appealability, Final Judgment Rule, Malicious Prosecution, Elements, Favorable Termination, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Legal Entitlement, Materiality of Facts, Concerted Action, Civil Conspiracy, Supporting Materials, Affidavits, Standards of Review, Scope, Exceptions, Burdens of Proof, Movant Persuasion & Proof, Attorney-Client Privilege, Judgments, Motions for Summary Judgment