Consolidation Coal Co. v. Bucyrus-Erie Co.
59 Ill. Dec. 666, 89 Ill. 2d 103, 432 N.E.2d 250 (1982)
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Rule of Law:
In Illinois, the attorney-client privilege for a corporate client is limited by the 'control group' test, which protects communications only from top management and key advisors whose opinions form the basis for final corporate decisions. Separately, an attorney's notes and memoranda of oral conversations with witnesses are considered opinion work product and are protected from discovery unless the seeking party demonstrates the absolute impossibility of securing the information from other sources.
Facts:
- Bucyrus-Erie (B-E) designed, manufactured, and repaired a wheel excavator for Consolidation Coal Company (Consolidation).
- On August 7, 1973, the excavator collapsed at Consolidation's coal mine.
- Following the collapse, B-E's in-house counsel interviewed various B-E employees and created memoranda and notes summarizing these oral conversations.
- A superior at B-E asked Richard Sailors, a materials development engineer, to analyze pieces of the failed machinery and render an opinion on what occurred.
- Sailors prepared a metallurgical report containing objective data, computations, and his analysis, without prior communication with B-E's legal department.
- This report was transferred to B-E's legal department approximately six months to a year after its creation.
- Sailors was a technical expert who supplied factual information to his superiors; he was not part of top management and did not have authority to make final decisions for the corporation based on legal advice.
Procedural Posture:
- Consolidation Coal Company sued Bucyrus-Erie in the circuit court of Cook County, Illinois (a trial court), to recover damages.
- During pretrial discovery, Consolidation requested production of documents, which B-E partially refused, claiming attorney-client and work-product privileges for a metallurgical report and attorney notes.
- Consolidation filed a motion to compel, and after an in camera review, the trial court ordered B-E to produce most of the documents.
- When B-E's attorney refused to comply with the order, the trial court held him in contempt and imposed a fine.
- B-E (appellant) appealed the trial court's contempt and discovery orders to the Illinois Appellate Court.
- The appellate court affirmed the trial court's discovery rulings with some modification, holding that Illinois law and the 'control group' test applied, rendering the documents discoverable.
- The Illinois Supreme Court granted B-E's petition for leave to appeal.
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Issue:
Do the attorney-client privilege and the work-product doctrine protect from discovery an internal metallurgical report prepared by a corporate employee and an attorney's notes and memoranda of interviews with corporate employees?
Opinions:
Majority - Justice Underwood
No, the attorney-client privilege does not protect the employee's metallurgical report from discovery, but yes, the work-product doctrine does protect the attorney's notes and memoranda. Illinois formally adopts the 'control group' test for determining the scope of the corporate attorney-client privilege. The court reasoned that this test strikes a reasonable balance between the privilege's purpose of encouraging candid legal advice and the state's broad discovery policy aimed at truth-seeking. The privilege only protects communications from employees in a position to control or take a substantial part in a corporate decision based on legal advice. Here, the engineer, Richard Sailors, was a technical expert who supplied factual information, not a member of the decision-making 'control group,' so his report was not privileged. Regarding the attorney's notes, the court held they are protected as opinion work product because they necessarily reveal the attorney's mental impressions and litigation strategy. Such material is discoverable only upon a conclusive showing of the absolute impossibility of securing the information elsewhere, a burden Consolidation did not meet.
Analysis:
This landmark Illinois Supreme Court decision formally adopted and defined the 'control group' test for corporate attorney-client privilege, choosing a narrower standard than the broader 'subject matter' test used in other jurisdictions at the time. This holding intentionally limits the 'zone of silence' within a corporation, prioritizing truth-seeking in discovery over broad protection for internal communications. The decision also establishes a strong, near-absolute protection for attorney opinion work product in Illinois, creating a high bar for discovery that is more protective than the federal 'substantial need' standard. This dual holding shapes corporate litigation strategy in Illinois by clarifying which internal documents are discoverable and which are protected, influencing how companies conduct internal investigations and how attorneys document their witness interviews.
