{ "id": 2606207, "name": "STEVE F. MLYNARSKI, Indiv. and as Special Adm'r of the Estate of Rita C. Mlynarski, Deceased, Plaintiff-Respondent, v. RUSH-PRESBYTERIAN ST. LUKE'S MEDICAL CENTER, Defendant-Contemnor", "name_abbreviation": "Mlynarski v. Rush-Presbyterian-St. Luke's Medical Center", "decision_date": "1991-04-26", "docket_number": "No. 1\u201490\u20140778", "first_page": "427", "last_page": "434", "citations": [ { "type": "official", "cite": "213 Ill. App. 3d 427" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "413 N.E.2d 1316", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 840", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3161069 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0840-01" ] }, { "cite": "522 N.E.2d 273", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "167 Ill. App. 3d 842", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3473099 ], "weight": 2, "pin_cites": [ { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0842-01" ] }, { "cite": "422 U.S. 225", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9475 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/us/422/0225-01" ] }, { "cite": "221 N.E.2d 410", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5380279 ], "weight": 2, "pin_cites": [ { "page": "359-60" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0351-01" ] }, { "cite": "491 N.E.2d 125", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 834", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3496975 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0834-01" ] }, { "cite": "543 N.E.2d 110", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "187 Ill. App. 3d 182", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2667845 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0182-01" ] }, { "cite": "559 N.E.2d 82", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 232", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2592803 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0232-01" ] }, { "cite": "432 N.E.2d 250", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "89 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5493252 ], "weight": 6, "pin_cites": [ { "page": "120" }, { "page": "120" }, { "page": "109" }, { "page": "110" }, { "page": "110-11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0103-01" ] } ], "analysis": { "cardinality": 695, "char_count": 15527, "ocr_confidence": 0.768, "pagerank": { "raw": 1.2033719858246811e-07, "percentile": 0.5942130216858202 }, "sha256": "413e6f80b05141e302129b2aebf6b367b3c5171ff50a88a670413d77db35004b", "simhash": "1:b92b34eaf3960de5", "word_count": 2426 }, "last_updated": "2023-07-14T21:36:27.836966+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STEVE F. MLYNARSKI, Indiv. and as Special Adm\u2019r of the Estate of Rita C. Mlynarski, Deceased, Plaintiff-Respondent, v. RUSH-PRESBYTERIAN-ST. LUKE\u2019S MEDICAL CENTER, Defendant-Contemnor." ], "opinions": [ { "text": "JUSTICE EGAN\ndelivered the opinion of the court:\nThe defendant, Rush-Presbyterian-St. Luke\u2019s Medical Center, appeals from a finding of contempt for the defendant\u2019s refusal to produce a document requested by the plaintiff.\nRita C. Mlynarski was admitted to Rush-Presbyterian-St. Luke\u2019s Medical Center and had surgery on March 12, 1987. On April 1, 1987, while she was still in the hospital, she slipped and fell in or near the bathroom and was injured. She died on September 12, 1987, and her husband, Steve Mlynarski, filed an action in her name on October 16, 1987.\nIn its answers to the plaintiff\u2019s interrogatories, the defendant identified all eyewitnesses to the occurrence, all persons at the scene immediately before and after the occurrence, all persons with knowledge of the facts of the plaintiff\u2019s injuries, and all persons who rendered treatment on the date of the occurrence.\nThe plaintiff filed supplemental interrogatories. Supplemental interrogatory number 2 sought the identity of the person within the defendant\u2019s risk management department who participated or claimed to have participated in the investigation of the accident. Interrogatory number 3 asked for the name and address of each person with whom members of the defendant\u2019s risk management department had communicated. Interrogatory number 7 asked for any statements, memoranda, interviews or writings concerning communications between the defendant, risk management, the defendant\u2019s attorneys or any other persons relative to the allegations of the complaint. The defendant objected to interrogatories 2 and 3 on the ground that they were overly broad, burdensome and sought information that was not relevant. It objected to interrogatory number 7 on the grounds that the information sought was protected by both the attorney-client privilege and the work-product privilege. The plaintiff filed a motion to compel the defendant to answer the interrogatories.\nAfter a hearing, the judge overruled the defendant\u2019s objections to interrogatories numbers 2 and 3, and ordered the defendant to answer them. The judge also ordered the defendant to provide the documents requested by interrogatory number 7 to the court for in camera inspection. The defendant filed its answers to interrogatory numbers 2 and 3; the answers revealed that Ruth Goldsberry, a coordinator in the defendant\u2019s office of risk management, had investigated the decedent\u2019s fall. The answers also disclosed the names and addresses of all but two of the persons that Goldsberry had contacted during the course of her investigation.\nThe judge conducted an in camera inspection of three documents requested by interrogatory number 7. She ruled that the first document, a letter from Goldsberry to the defendant\u2019s outside counsel, was privileged. She also ruled that the second document, a memo from Goldsberry to the defendant\u2019s general counsel, was privileged because it contained a discussion about settlement.\nThe judge ruled that a memorandum from Goldsberry to the defendant\u2019s general counsel was not privileged and ordered the defendant to produce it. The memorandum consisted of summaries of statements from persons Goldsberry had interviewed. The judge explained that, although the statements contained in that memorandum were not verbatim statements of witnesses, the memorandum did not involve Goldsberry\u2019s \u201cmental machinations.\u201d\nThe defendant\u2019s attorney sent a letter to the plaintiff\u2019s attorney indicating that the defendant did not intend to comply with the judge\u2019s order to produce the April 16 memorandum. The plaintiff\u2019s attorney filed a motion requesting the judge to compel the defendant\u2019s compliance with the order or to impose sanctions. On February 22, 1990, the judge granted the plaintiff\u2019s motion to compel, and the defendant was held in contempt of court and fined $1. The issue is whether the disputed memorandum is protected by the attorney-client or work-product privilege. In effect, the judge ruled that it was protected by neither. The defendant contends that it is protected by both.\nThe attorney-client privilege protects confidential communications made by a client to an attorney while seeking legal advice. (134 Ill. 2d R. 201(b)(2).) When the client is a corporation, however, the question becomes which employees of the corporation are entitled to the protection of the privilege when they communicate with the corporation\u2019s attorneys. The Illinois Supreme Court has adopted what has been described as a \u201ccontrol group\u201d test. (Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 432 N.E.2d 250.) The court held that a rule limiting the privilege to employees forming \u201ctop management\u201d was too narrow and adopted an expanded version of the control-group test:\n\u201cWe believe that an employee whose advisory role to top management in a particular area is such that a decision would not normally be made without his advice or opinion, and whose opinion in fact forms the basis of any final decision by those with actual authority, is properly within the control group. However, the individuals upon whom he may rely for supplying information are not members of the control group. *** This approach, we think, better accommodates modern corporate realities and recognizes that decision-making within a corporation is a process rather than a final act.\u201d (89 Ill. 2d at 120.)\nUnder the control-group test, there are two tiers of corporate employees whose communications with the corporation\u2019s attorney are protected. The first tier consists of the decision-makers, or top management. The second tier consists of those employees who directly advise top management, and upon whose opinions and advice the decision-makers rely. 89 Ill. 2d at 120.\nThe party who claims the privilege has the burden of showing the facts which give rise to the privilege. (Claxton v. Thackston (1990), 201 Ill. App. 3d 232, 559 N.E.2d 82.) The question before us, therefore, is reduced to this: Has the defendant maintained its burden of showing that Goldsberry was a member of the control group? In support of its position the defendant submitted the affidavit of Sandra R. Jones, the director of the office of risk management and Golds-berry\u2019s superior. Goldsberry held a position of coordinator. In her affidavit Jones said the following:\n\u201cAll settlement decisions made with respect to litigated and non-litigated claims against the Medical Center are made jointly by Mr. Brown [the defendant\u2019s general counsel], affiant [Jones] as Director, Office of Risk Management and the Coordinator in the Office of Risk Management who was assigned to handle the particular matter. Both affiant and the Coordinator assigned to any such matter are consulted from time to time both by Mr. Brown and by outside counsel to determine what legal action the medical center will pursue with respect to particular claims. The advice and opinions of affiant and the assigned coordinator form part of the basis for any decision to settle or litigate the matter.\u201d\nThe defendant argues that the affidavit of Jones provides the necessary proof that Goldsberry was a member of the control group. The plaintiff has not responded to this argument. We are bound by the record before us. The affidavit is unrebutted, and the legal sufficiency of the affidavit was not challenged in the trial court or in this court. Consequently, it is part of the record for our consideration, and we may not ignore it. (See Healy v. Owens-Coming Fiberglass (1989), 187 Ill. App. 3d 182, 543 N.E.2d 110; Miller v. St. Charles Condominium Association (1986), 141 Ill. App. 3d 834, 491 N.E.2d 125.) We note that two other documents, a memorandum from Goldsberry to the defendant\u2019s general counsel and a letter from Goldsberry to outside counsel, were not discoverable, the letter on the ground that it discussed settlement. The letter, at least, gives rise to some inference that Goldsberry participated and contributed to settlement discussions. We judge, therefore, based on the record before us, that the defendant submitted sufficient proof to establish that Goldsberry was part of the control group and that the Goldsberry memorandum was protected by the attorney-client privilege. In so doing, we do not mean to say that the sufficiency or the accuracy of affidavits such as that of Sandra Jones may not be tested in the trial court before a judge rules on whether information is discoverable. The extent to which Goldsberry participated in the decision-making process, the nature of her opinions, although not the specific opinions themselves, and the weight given her opinions should themselves be subject to inquiry.\nWe turn now to the question of whether the work-product doctrine is applicable. The Illinois work-product doctrine is narrower than the Federal work-product doctrine. Under the Federal rules, all work performed by an attorney or his agent in anticipation of litigation is protected from discovery. (See Fed. R. Civ. R 26(b)(3).) In Illinois, however, only \u201copinion work product,\u201d matter which discloses the theories, mental impressions or litigation plans of a party\u2019s attorney, is protected from discovery. See 134 Ill. 2d R. 201(b)(2).\nIn Monier v. Chamberlain (1966), 35 Ill. 2d 351, 221 N.E.2d 410, the Illinois Supreme Court defined work product as only those documents \u201cwhich reveal the shaping process by which the attorney has arranged the available evidence for use in trial as dictated by his training and experience.\u201d (35 Ill. 2d at 359-60.) The doctrine applies not only to documents prepared by an attorney, but also to documents prepared by the attorney\u2019s agent or investigator. See United States v. Nobles (1975), 422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160.\nThe precise issue before us was before the supreme court in Consolidation Coal:\n\u201cWe consider today whether counsel\u2019s notes and memoranda of employees or witnesses\u2019 oral statements which are not verbatim and are not reviewed, altered, corrected, or signed by these individuals are protected work-product.\u201d Consolidation Coal, 89 Ill. 2d at 109.\nThe defendant in Consolidation Coal refused to produce various memoranda and notes of interviews with witnesses prepared by in-house counsel. The supreme court conducted its own in camera examination of the documents (as we did here) and recognized that the notes represented a mixture of factual material and the attorney\u2019s work product in the form of his conclusions, characterizations and summaries. The court expressed strong disapproval of imposing on trial courts the burden of reviewing voluminous material and sifting from the material what is discoverable and what is not discoverable. The court concluded, \u201cAccordingly we hold that attorneys\u2019 notes and memoranda of oral conversations with witnesses or employees are not routinely discoverable.\u201d 89 Ill. 2d at 110.\nThe court recognized, however, that in some instances the attorney\u2019s notes might constitute the only source of certain facts, and, therefore, it created an exception to the absolute exemption otherwise granted to opinion work product in Illinois. The court held that if an attorney\u2019s notes contain a mixture of unprivileged factual material and privileged opinion work product, the notes will be subject to discovery only if a party can show that it is absolutely impossible to secure the factual information from other sources. 89 Ill. 2d at 110-11.\nGoldsberry\u2019s memorandum is the equivalent of the attorney\u2019s notes in Consolidation Coal. The memorandum contains summaries of Goldsberry\u2019s conversations with witnesses; however, it does not contain any of the witnesses\u2019 verbatim statements. It was not reviewed, adopted, altered or signed by any of the witnesses. Therefore, in accordance with Consolidation Coal, the memorandum is protected by the work-product privilege unless the plaintiff can show that it is impossible to obtain the factual information contained in the memorandum from any other source. The plaintiff has not made such a showing; the plaintiff\u2019s attorney admitted at oral argument that he had the names and addresses of all of the witnesses interviewed by the defendant and that he could depose any or all of those witnesses himself.\nWe disagree with the plaintiff that Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 522 N.E.2d 273, requires a different conclusion. In that case the documents in question were letters from the defendant\u2019s risk management consultant to the defendant\u2019s risk manager discussing what transpired at meetings of the defendant\u2019s risk management committee. The appellate court held that the documents were not subject to the work-product privilege because they did \u201cnot contain or disclose any theories, mental impressions or litigation plans\u201d but instead were \u201cfactual statements relating to plaintiffs\u2019 medical conditions or prognoses.\u201d (167 Ill. App. 3d at 847.) We note that the trial judge in SaJcoslco redacted certain material, and we emphasize that the documents were not summaries of oral statements of witnesses. We also note that the Sakosko court did not mention Consolidation Coal.\nUnder the compulsion of Consolidation Coal, therefore, we judge that the memorandum of Goldsberry is protected from discovery by the work-product privilege and the attorney-client privilege and that the court erred in the judgment of contempt against the defendant.\nFor future guidance, we would add a word of caution to the defendant. The defendant\u2019s statement that its answers to interrogatories included the names of all persons that Goldsberry had interviewed is not completely accurate. The document included summaries of interviews with nurses and doctors and the daughter and husband of the deceased. The daughter and husband were not named in the answers to interrogatories. We are hard-pressed to conjure up a justification for the invocation of privilege in the case of statements made by the deceased\u2019s daughter or husband. However, Consolidation Coal made no distinction between witnesses, and the broad holding of Consolidation Coal does not, in our judgment, permit an intermediate reviewing court to create another exception to its holding. Nonetheless, we judge that, if the daughter or husband testifies, the defendant should be barred from any attempt to impeach them from statements made to Goldsberry unless the defendant makes the relevant portions of Goldsberry\u2019s memorandum available to the plaintiff before the daughter or husband testifies. (Cf. United States v. Nobles (1975), 422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160.) If any of the other persons named in the memorandum testifies and the defendant seeks to impeach him with Goldsberry\u2019s testimony, the defendant\u2019s work-product privilege and the attorney-client privilege shall be deemed waived with respect to that witness, and the defendant may be required to turn over to the plaintiff any portion of the reports relevant to cross-examining Goldsberry. See People v. Grier (1980), 90 Ill. App. 3d 840, 413 N.E.2d 1316.\nJudgment reversed.\nRAKOWSKI, P.J., and LaPORTA, J., concur.", "type": "majority", "author": "JUSTICE EGAN" } ], "attorneys": [ "Arnstein & Lehr, of Chicago (John L. Ropiequet and Laura Lynne Puk, of counsel), for appellant.", "Raymond P. Concannon, Ltd., of Chicago (Raymond P. Concannon and Michael P. Concannon, of counsel), for appellee." ], "corrections": "", "head_matter": "STEVE F. MLYNARSKI, Indiv. and as Special Adm\u2019r of the Estate of Rita C. Mlynarski, Deceased, Plaintiff-Respondent, v. RUSH-PRESBYTERIAN-ST. LUKE\u2019S MEDICAL CENTER, Defendant-Contemnor.\nFirst District (6th Division)\nNo. 1\u201490\u20140778\nOpinion filed April 26, 1991.\nArnstein & Lehr, of Chicago (John L. Ropiequet and Laura Lynne Puk, of counsel), for appellant.\nRaymond P. Concannon, Ltd., of Chicago (Raymond P. Concannon and Michael P. Concannon, of counsel), for appellee." }, "file_name": "0427-01", "first_page_order": 449, "last_page_order": 456 }