Consolidation Coal Co. v. Bucyrus-Erie Co. - 89 Ill. 2d 103, 59 Ill. Dec. 666, 432 N.E.2d 250 (1982)

Rule:

An attorney's notes or memoranda of oral conversations with witnesses or employees are discoverable only if the party seeking disclosure conclusively demonstrates the absolute impossibility of securing similar information from other sources.

Facts:

Plaintiff, Consolidation Coal Company (Consolidation), brought this action in the circuit court of Cook County on January 18, 1977, to recover damages allegedly sustained on August 7, 1973, when its wheel excavator collapsed at its Pinckneyville, Illinois, coal mine. The excavator was designed, manufactured and repaired for Consolidation by defendant, Bucyrus-Erie (B-E), a Delaware corporation, licensed to do business in Illinois with its principal place of business and corporate headquarters in Wisconsin. Its attorneys are licensed to practice law in Illinois and Wisconsin. Consolidation commenced discovery in May of 1977 by filing a production request for all of B-E's documents relating to the design, manufacture, erection, and repair of the wheel excavator and all documents relating to the investigation of the excavator's collapse or otherwise relating to the facts in controversy, including memoranda, notes, correspondence, reports, statements, interviews, photographs, sides, films, recordings, tapes, micrographs, and metallurgical test data. B-E produced thousands of documents for inspection, but, invoking the attorney-client and work-product privileges, refused to produce a "metallurgical report" prepared by its employee, Richard Sailors, a report prepared by Tom Learmont, its director of engineering and mining machinery, and memoranda and notes of interviews with various B-E employees prepared by its in-house counsel. After several hearings, the trial court ordered B-E to provide all of the documents in question, with the exception of certain deleted portions which it ruled constituted "work product" and the "Learmont Report," which the court ruled was exempt from discovery under the attorney-client privilege. On appeal, the appellate court considered the attorney-client privilege inapplicable because there was no allegation by B-E that the disputed documents were received from members of B-E's "control group." It further held that neither Sailors' metallurgical report nor the bulk of B-E's attorney's notes constituted work product. The court also found that the attorneys' notes, with minor exceptions, contain factual information submitted by B-E's employees and do not reveal the attorneys' mental processes in shaping litigation strategy.

Issue:

Were the attorneys’ notes exempt from discovery?

Answer:

Yes.

Conclusion:

Some of the disputed documents prepared by B-E's attorneys in this case were handwritten; others were type-written in the form of memoranda. In the in camera inspection, it was evident that the typewritten documents, which were reduced to succinct and concise form, represent the attorneys' efforts in reviewing, analyzing and summarizing the portion of the communications with potential witnesses which the attorneys believed important in developing their theories of their client's cause. As such, they necessarily "'reveal[ed] the shaping process by which the attorney[s] [have] arranged the available evidence for use in trial as dictated by [their] training and experience'" and were therefore entitled to protection. Concededly, some of the factual material might have been relevant to the issues. In many instances, however, this material was so inextricably intertwined with the privileged material that its isolation is virtually impossible. Further, there was nothing in this record to indicate any necessity that would lead us to hold the exception to the work-product doctrine as applicable herein. According to the affidavit of one of Consolidation's attorneys, B-E has made available for inspection "engineering records, design calculations, material specifications, correspondence and notes estimated to include tens of thousands of individual documents." In short, there was nothing which indicates that Consolidation does not already have or cannot obtain through its attorneys' efforts and depositions the same factual information that is now included in the form of B-E's attorneys' work product.