{ "id": 4262550, "name": "ALEC SHARP, Indiv. and as Representative of Certain Underwriters at Lloyd's, London, et al., Plaintiffs-Appellees, v. TRANS UNION L.L.C., Defendant-Appellant", "name_abbreviation": "Sharp v. Trans Union L.L.C.", "decision_date": "2006-03-01", "docket_number": "No. 1\u201405\u20140719", "first_page": "64", "last_page": "76", "citations": [ { "type": "official", "cite": "364 Ill. App. 3d 64" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "834 N.E.2d 549", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "557" } ], "opinion_index": 0 }, { "cite": "359 Ill. App. 3d 448", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5596333 ], "year": 2005, "pin_cites": [ { "page": "457-58" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/359/0448-01" ] }, { "cite": "355 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "30" } ], "opinion_index": 0 }, { "cite": "64 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429542 ], "year": 1976, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0187-01" ] }, { "cite": "683 N.E.2d 476", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "477" }, { "page": "478" } ], "opinion_index": 0 }, { "cite": "289 Ill. App. 3d 855", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351114 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "855-56" }, { "page": "856" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0855-01" ] }, { "cite": "835 N.E.2d 801", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "871-72", "parenthetical": "observing that an individual's auto insurance policy is a contract of adhesion and declining to strictly enforce certain terms" } ], "opinion_index": 0 }, { "cite": "216 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3828029 ], "year": 2005, "pin_cites": [ { "page": "218-19", "parenthetical": "observing that an individual's auto insurance policy is a contract of adhesion and declining to strictly enforce certain terms" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0100-01" ] }, { "cite": "727 N.E.2d 240", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "243" } ], "opinion_index": 0 }, { "cite": "189 Ill. 2d 579", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224788 ], "year": 2000, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0579-01" ] }, { "cite": "140 F.R.D. 381", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 7850873 ], "year": 1992, "pin_cites": [ { "page": "386", "parenthetical": "cooperation clause did not mention coverage investigations, and court held a cooperation clause would not effect a waiver of attorney-client privilege absent an expressed intent to do so" } ], "opinion_index": 0, "case_paths": [ "/frd/140/0381-01" ] }, { "cite": "220 Wis. 2d 51", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 11615837 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "72", "parenthetical": "cooperation clause required insured to \"cooperate with the [insurance] company\" in suits, but made no mention of coverage" }, { "page": "420", "parenthetical": "cooperation clause required insured to \"cooperate with the [insurance] company\" in suits, but made no mention of coverage" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/220/0051-01" ] }, { "cite": "773 N.E.2d 98", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "101" } ], "opinion_index": 0 }, { "cite": "332 Ill. App. 3d 385", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1033990 ], "year": 2002, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0385-01" ] }, { "cite": "650 N.E.2d 603", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "604" }, { "page": "604" } ], "opinion_index": 0 }, { "cite": "272 Ill. App. 3d 490", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 251982 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "492" }, { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0490-01" ] }, { "cite": "823 N.E.2d 561", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2005, "pin_cites": [ { "page": "564" }, { "page": "604" }, { "page": "604" } ], "opinion_index": 0 }, { "cite": "214 Ill. 2d 11", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8450488 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "17" }, { "page": "17" }, { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/214/0011-01" ] }, { "cite": "432 N.E.2d 250", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "page": "256" } ], "opinion_index": 0 }, { "cite": "89 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5493252 ], "year": 1982, "pin_cites": [ { "page": "117-18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0103-01" ] }, { "cite": "579 N.E.2d 322", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 15, "year": 1991, "pin_cites": [ { "page": "326-27" }, { "page": "327" }, { "page": "327" }, { "page": "327" }, { "page": "327" }, { "page": "325-26" }, { "page": "328" }, { "page": "327-28" }, { "page": "327" }, { "page": "327" }, { "page": "327-28" }, { "page": "327-28", "parenthetical": "cooperation clause required insured to \" 'give all such information and assistance as the insurers may reasonably require,' \" but made no mention of coverage" }, { "page": "327" }, { "page": "327" } ], "opinion_index": 0 }, { "cite": "144 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592553 ], "weight": 15, "year": 1991, "pin_cites": [ { "page": "190" }, { "page": "190" }, { "page": "190" }, { "page": "190" }, { "page": "191" }, { "page": "188" }, { "page": "192" }, { "page": "192" }, { "page": "191" }, { "page": "191" }, { "page": "191-92" }, { "page": "192" }, { "page": "190" }, { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0178-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "1210" }, { "page": "1210" }, { "page": "1210" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "103" }, { "page": "103" }, { "page": "103-04" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "15 U.S.C. \u00a7 1681", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1110, "char_count": 31387, "ocr_confidence": 0.794, "pagerank": { "raw": 5.0654070157304924e-08, "percentile": 0.31983621438933313 }, "sha256": "04902177430a68ac3adb30b6338772b80e362c87d2d70761c5652094aae2df4f", "simhash": "1:3034f5de9cec0296", "word_count": 4966 }, "last_updated": "2023-07-14T18:36:54.493342+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ALEC SHARP, Indiv. and as Representative of Certain Underwriters at Lloyd\u2019s, London, et al., Plaintiffs-Appellees, v. TRANS UNION L.L.C., Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE THEIS\ndelivered the opinion of the court:\nDefendant, Trans Union L.L.C., appeals pursuant to Supreme Court Rule 304(b)(5) (210 Ill. 2d R. 304(b)(5)) from a contempt order entered by the circuit court of Cook County after Trans Union failed to comply with an earlier order compelling it to produce certain documents requested by plaintiff, Alec Sharp, individually and as representative of certain underwriters at Lloyd\u2019s of London (the Underwriters). In that request, pursuant to Supreme Court Rule 214 (166 Ill. 2d R. 214), the Underwriters sought documents relevant to their determination of whether certain class action lawsuits filed against Trans Union would be excluded from coverage under Trans Union\u2019s $75 million professional liability insurance policy. Those documents included, inter alia, items reflecting or pertaining to Trans Union\u2019s general counsel\u2019s knowledge of the Fair Credit Reporting Act (15 U.S.C. \u00a7 1681 et seq. (2000)) (the FCRA) and of Federal Trade Commission (FTC) and private litigation arising from alleged violations of the FCRA (collectively the pre-policy documents). Trans Union refused to turn the pre-policy documents over to the Underwriters, claiming they were protected from disclosure by the attorney-client privilege and the work product doctrine. The circuit court granted the Underwriters\u2019 motion to compel the production of the pre-policy documents and, when Trans Union refused to comply, held Trans Union in contempt of court.\nOn appeal, Trans Union contends that the circuit court erred in granting the Underwriters\u2019 motion to compel Trans Union to produce the pre-policy documents. Trans Union alternatively argues that even if production of the pre-policy documents was properly ordered, it should not occur at this time because it will prejudice Trans Union\u2019s defense in the underlying lawsuits. For the reasons that follow, we find that Trans Union bargained away any privilege against disclosure applicable to the pre-policy documents when it agreed to a manu-scripted insurance policy, which defined coverage in terms of what Trans Union\u2019s general counsel knew about existing and potential errors and omissions lawsuits.\nThe record discloses the following facts relevant to the determination of this appeal. Trans Union is an international provider of consumer credit reporting services. As such, Trans Union collects and maintains a massive database of consumer credit information. In the 1990\u2019s, Trans Union was engaged in the business of selling pre-screened lists of consumers to credit grantors for target marketing purposes.\nOn December 15, 1992, the FTC filed an administrative complaint against Trans Union, alleging that Trans Union violated the FCRA by selling consumer reports in the form of prescreened lists to third parties for improper purposes. An administrative law judge ultimately ruled that Trans Union violated the FCRA by selling the lists. However, Trans Union elected to appeal the FTC\u2019s decision and continued to sell the target marketing information. At the time the present action was filed, Trans Union was still pursuing appeals of the FTC\u2019s decision. Trans Union did not stop selling consumer information from its databases until roughly 2002.\nOn August 31, 1998, Joshua Frey filed a complaint against Trans Union in Orange County, California, based on allegations similar to those in the FTC complaint. The plaintiff alleged, inter alia, that Trans Union \u201csells the individual consumer information it collects *** to third-parties who do not have a permissible purpose for obtaining or receiving the information *** under the FCRA.\u201d\nDuring this time, Trans Union decided to procure professional liability insurance coverage. Denise Norgle, Trans Union\u2019s assistant general counsel at the time, explained in her deposition that she was involved in the discussions leading to the decision. However, the only factor that Norgle could recall in the decision was that Trans Union had been involved in contract negotiations with some \u201cvery large customers,\u201d who would have required Trans Union to obtain errors and omissions insurance. Norgle would not answer questions regard-, ing whether Trans Union suspected that there would be future lawsuits based on the sale of consumer information to third parties without proper purposes under the FCRA. Norgle would also not answer questions about whether Trans Union believed that such future suits would be covered under a professional liability insurance policy.\nAccordingly, on October 13, 1998, Trans Union submitted an application for professional liability insurance with its broker, Aon Risk Services, Inc. In that application, Trans Union indicated that there were \u201cvarious consumer claims pending against it that have been brought for alleged violations of federal and state consumer reporting laws.\u201d However, the FTC and Frey lawsuits were not listed among the suits disclosed at that time.\nThrough Aon, negotiations to insure Trans Union began with the Alec Sharp Syndicate at Lloyd\u2019s of London. Andrew Syson, the Sharp Syndicate\u2019s commercial professional indemnity underwriter at the time, further explained this process in his deposition. Although Syson was not familiar with Trans Union\u2019s application, he explained generally that someone at the Sharp Syndicate would have reviewed the application and the claims history before underwriting the policy. Frequently, underwriters request more information on pending claims.\nTerms of policies are then established by negotiation. The wording of the policy might begin with a more standard language, but would be altered during the negotiation process. Regarding the policy at issue in the case at bar, Syson identified a number of changes that were made to the language of the policy during the negotiation process. Among them, the language of exclusion (g) of the policy was changed from excluding:\n\u201cany Claim arising out of acts, errors, violations or omissions that took place prior to the effective date of this Insurance, if the Chief Financial Officer of the Named Assured on the effective date knew or could reasonably have foreseen that such acts, errors, violations or omissions might be expected to be the basis of a Claim\u201d (emphasis added) to excluding claims only if the chief financial officer on the effective date \u201cknew that such acts, errors, violations or omissions might be expected to be the basis of a Claim\u201d (emphasis added).\nStuart Essex, Aon\u2019s United Kingdom broker, also discussed the negotiation of the policy language in his deposition. Essex stated that he had never worked on an account that required so many changes to the policy language, observing that this was \u201cone of the worst cases I have seen for required amendments.\u201d Essex also indicated that Aon was concerned they were \u201ckilling the policy with too many attempts to amend the policy language.\u201d\nThe process of negotiating Trans Union\u2019s policy took months, and Aon wanted the coverage in place by June 10, 1999. Accordingly, on April 9, 1999, Essex sent an e-mail to Mary Gander at Aon expressing his concerns that an agreement regarding the policy might not be reached. Essex also requested a \u201cno known loss\u201d letter, which would indicate that since Trans Union submitted its application, no further known claims had been filed. According to Syson, it was quite common for Lloyd\u2019s policies to be bound contingent upon an updated loss letter being received at a later date.\nThe Underwriters ultimately issued a $75 million claims made professional liability policy to Trans Union on June 16, 1999. Thereafter, on July 13, 1999, Trans Union submitted a letter disclosing the FTC litigation, the Frey suit, and two additional consumer suits which had been filed since its application was submitted. The first additional suit was filed by Marti Martinelli in California on January 28, 1999. The second additional suit was filed by Michael Rosen in California on February 11, 1999. Like the FTC litigation and the Frey suit, the Martinelli and Rosen suits were based on, inter alia, allegations that Trans Union improperly sold consumer information to third parties in violation of the FCRA.\nWhen the Underwriters received notice of these claims, Essex wrote an e-mail to Mary Gander that \u201clarge eyebrows were raised.\u201d However, the Underwriters did not change their decision to insure Trans Union. Essex also noted that because the policy excluded claims made prior to the inception of the policy, these claims would not be covered.\nAt its inception on June 16, 1999, the policy included the following relevant provisions. The policy covered only those claims \u201cfirst made against any Assured during the Period of Insurance.\u201d The policy also contained certain specific exclusions. Among them was exclusion (g), which excluded:\n\u201cany Claim arising out of acts, errors, violations or omissions that took place prior to the effective date of this Insurance, if the Chief Financial Officer of the Named Assured on the effective date knew that such acts, errors, violations or omissions might be expected to be the basis of a Claim.\u201d\nThe policy further provided:\n\u201cAll Claims arising out of the same, continuing or related Professional Services shall be considered a single Claim and deemed to have been made at the time of the first of the related claims is reported to the Underwriters and shall be subject to one Limit of Liability.\u201d\nThe policy included a cooperation clause, requiring:\n\u201cThe Assured shall co-operate with the Underwriters in all investigations, including investigations regarding the application and coverage under this Policy ***.\u201d\nAfter the policy was issued, and the Underwriters learned of the pre- and post-policy suits, the policy was modified several times. Among those modifications, on September 19, 2000, the term \u201cChief Financial Officer\u201d was changed to \u201cGeneral Counsel.\u201d\nBeginning on September 19, 1999, 14 more consumer lawsuits were filed against Trans Union. Each of these suits was based on, inter alia, allegations that Trans Union improperly sold consumer information to third parties in violation of the FCRA. These lawsuits were subsequently consolidated and are currently pending before the Federal Multi-District Litigation Panel.\nOn April 2, 2001, the Underwriters initiated the present action by filing a complaint for declaratory judgment in the circuit court. Therein, the Underwriters sought a declaratory judgment that the 14 consumer lawsuits filed after the inception of the policy were not covered. In count I, the Underwriters sought a declaration that all of the consumer suits arose out of the same allegations and causes of action; therefore, they constituted one \u201cclaim\u201d within the meaning of the policy. In count II, the Underwriters sought a declaration that the 14 post-policy claims were based on the same acts, errors, violations and omissions that were known of prior to the inception of the policy because they were based on the same allegations as the pre-policy suits. In count III, the Underwriters sought a declaration that under the common law known loss doctrine articulated in Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992), the insured purchased the policy with reason to know that it will suffer or has already suffered a loss; therefore, the loss is uninsurable under the policy. Finally, in count iy the Underwriters sought a declaration that the policy\u2019s other terms and exclusions limited or excluded coverage.\nDuring the discovery process, on March 6, 2002, the Underwriters served Trans Union with a Supreme Court Rule 214 (166 Ill. 2d R. 214) request for production of documents. In that request, the Underwriters sought all documents related to the pre- and post-policy lawsuits and all documents related to the drafting and negotiation of the policy. Trans Union refused to turn over a number of these documents, citing the attorney-client privilege and the work product doctrine.\nOn January 12, 2004, the Underwriters filed a motion to compel Trans Union to produce, inter alia, conversations and statements made by or to Trans Union\u2019s corporate and outside counsel, and documents contained in the files of Trans Union\u2019s defense counsel in the FTC and other lawsuits. The Underwriters claimed that the 14 post-policy suits were excluded from coverage by exclusion (g) of the policy, which excludes errors and omissions that Trans Union\u2019s general counsel knew might be expected to be the basis of a claim. The Underwriters further claimed that the attorney-client privilege and the work product doctrine were inapplicable to the documents in question under the supreme court\u2019s holding in Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178, 579 N.E.2d 322 (1991).\nThe court held a hearing on the Underwriters\u2019 motion to compel on March 25, 2004, and issued a number of pronouncements regarding the scope of the discovery. Notably, the court indicated that the Underwriters were \u201centitled to get into general counsel\u2019s thought processes or estimations because that\u2019s part of the coverage,\u201d so long as it was relevant to the question of risks. However, the court made no ruling on the motion to compel at that time. Rather, it expressed concern that the discovery requests were veiy broad and categorical, and directed the Underwriters to narrow their request.\nTrans Union subsequently produced a 251-page privilege log. On July 22, 2004, the Underwriters wrote to Trans Union and requested certain documents from the log. On August 6, 2004, Trans Union responded that it would not produce the requested documents, citing the attorney-client privilege and the work product doctrine.\nAccordingly, on August 11, 2004, the Underwriters filed a second motion to compel Trans Union to produce the documents. This time, the Underwriters narrowed their request to four categories of documents: (1) pre-policy documents that reflect, potentially reflect, or pertain to Trans Union\u2019s and/or its general counsel\u2019s knowledge and/or analysis of the FCRA, the FTC litigation, and private litigation arising from the same allegations as the FTC litigation; (2) documents relating to Trans Union\u2019s attempts to settle the Martinelli litigation; (3) documents that appear to reflect database research, and (4) documents related to losses alleged by Trans Union, which Trans Union claimed eroded a self-insured retention in the policy. The Underwriters attached a color-coded display of the privilege log indicating which documents fell into which category.\nOn November 8, 2004, the court conducted a hearing on the Underwriters\u2019 second motion to compel. The court found that there was a duty to cooperate under the policy, which included the duty to disclose pre-policy matters. The court thus concluded that \u201cthe cooperation clause trumps the privilege in relevant areas\u201d and ordered Trans Union to produce the first category of requested documents, which included items communicated by or to Trans Union\u2019s general counsel relating to the FTC proceedings or the pre-policy suits. As to the other three categories, the court indicated that they were still too broad and encouraged the parties to narrow the request through further discovery.\nSubsequently, on February 5, 2005, the parties stipulated to a protective order, agreeing that they could keep certain discovery materials confidential. This order limited access to these materials to the parties to the present case, their attorneys, their witnesses, and the court.\nUltimately, Trans Union moved for the entry of a contempt order solely for the purpose of permitting it to immediately appeal the order requiring it to turn over the documents in question. The court granted the order on February 9, 2005, and fined Trans Union $1 for its noncompliance. Trans Union timely filed a notice of appeal from that order pursuant to Supreme Court Rule 304(b)(5) (210 111. 2d R. 304(b)(5)) on March 8, 2005.\nIn this appeal, Trans Union contends that the circuit court erred when it ordered Trans Union to produce the pre-policy documents because the documents were protected from disclosure by the attorney-client privilege and the holding of Waste Management does not, and should not, apply to pre-policy materials. The Underwriters respond that the manuscripted cooperation clause of the insurance contract, read together with exclusion (g) of the policy and the rationale of Waste Management, requires Trans Union to produce the pre-policy documents.\n\u201c \u2018The purpose of the attorney-client privilege is to encourage and promote full and frank consultation between a client and legal advisor by removing the fear of compelled disclosure of information.\u2019 \u201d Waste Management, 144 Ill. 2d at 190, 579 N.E.2d at 326-27, quoting Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 117-18, 432 N.E.2d 250, 256 (1982). However, the privilege against disclosure is the exception, rather than the rule. Waste Management, 144 Ill. 2d at 190, 579 N.E.2d at 327. Thus, the privilege should be strictly confined within its narrowest possible limits. Waste Management, 144 Ill. 2d at 190, 579 N.E.2d at 327. In the context of the relationship between insurer and insured, Illinois \u201cadhere[s] to a strong policy of encouraging disclosure, with an eye toward ascertaining that truth which is essential to the proper disposition of a lawsuit.\u201d Waste Management, 144 Ill. 2d at 190, 579 N.E.2d at 327.\nThe scope of the relationship between an insurer and an insured is defined and controlled by the insurance policy. Waste Management, 144 Ill. 2d at 191, 579 N.E.2d at 327. Because insurance policies are contracts, the rules of contract interpretation apply to them as they would to any other type of contract. Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11, 17, 823 N.E.2d 561, 564 (2005); Silverman v. Economy Fire & Casualty Co., 272 Ill. App. 3d 490, 492, 650 N.E.2d 603, 604 (1995). Thus, the court\u2019s primary objective in interpreting an insurance policy is to ascertain and give effect to the intention of the parties, as expressed in the policy language. Hobbs, 214 Ill. 2d at 17, 823 N.E.2d at 604. To do so, the court must examine the entire document, considering the plain language of the policy as well as its subject matter and purpose. Silverman, 272 Ill. App. 3d at 492, 650 N.E.2d at 604. The court may look to extrinsic materials only where the policy\u2019s language is ambiguous. Harrington v. American Family Mutual Insurance Co., 332 Ill. App. 3d 385, 389, 773 N.E.2d 98, 101 (2002). If the policy language is unambiguous, the policy will be applied as written, provided that it does not contravene public policy. Hobbs, 214 Ill. 2d at 17, 823 N.E.2d at 604.\nIn Waste Management, the supreme court applied all of the above principles and held that neither the attorney-client privilege nor the work product doctrine applied to documents created in defense of two previously settled lawsuits in a subsequent coverage dispute regarding one of the suits. Waste Management, 144 Ill. 2d at 188, 579 N.E.2d at 325-26. In so holding, the court determined that the parties\u2019 duties arising under the insurance contract did not end when the underlying litigation settled, but continued for as long as the insured sought to enforce the policy\u2019s terms. Waste Management, 144 Ill. 2d at 192, 579 N.E.2d at 328. The court\u2019s holding was based in large part upon its interpretation of the language of the parties\u2019 insurance contract. The policy at issue in that case contained a cooperation clause that imposed a broad duty of cooperation upon the insured, which was without limitation or qualification and required the insured to \u201c \u2018give all such information and assistance as the insurers may reasonably require.\u2019 \u201d Waste Management, 144 Ill. 2d at 192, 579 N.E.2d at 327-28. The court emphasized that \u201c[a]ny condition in the policy requiring cooperation on the part of the insured is one of great importance.\u201d Waste Management, 144 Ill. 2d at 191, 579 N.E.2d at 327. Further, the court observed that the purpose of a cooperation clause is to protect the insurer\u2019s interests from fraud. Waste Management, 144 Ill. 2d at 191, 579 N.E.2d at 327. Thus, the court read the broad, unlimited, unqualified duty of cooperation imposed by the parties\u2019 insurance contract as requiring the insured to disclose the information to the insurer. Waste Management, 144 Ill. 2d at 191-92, 579 N.E.2d at 327-28.\nUnlike the documents at issue in Waste Management, the documents in question here were created prior to the inception of the policy; nevertheless, we find the supreme court\u2019s decision in that case to be instructive. The broad policies articulated by the supreme court in Waste Management are equally applicable to our interpretation of the insurance contract at issue here. Our application of principles of contract interpretation and the policies articulated in Waste Management reveals that the parties\u2019 manuscripted insurance policy was negotiated and written to require the disclosure of Trans Union\u2019s general counsel\u2019s knowledge, work product, and communications regarding the pre-policy litigation.\nExclusion (g) of the policy, read together with the policy\u2019s cooperation clause, requires that items communicated by or to Trans Union\u2019s general counsel relating to the FTC proceedings or the pre-policy suits be turned over. The language of exclusion (g) is not ambiguous. The only possible meaning of it, or intent behind it, is to exclude from coverage any claim based upon an act, error, violation, or omission that Trans Union\u2019s general counsel knew could be the basis of a future claim. Exclusion (g) thus protects the Underwriters from insuring a known loss. See, e.g., Outboard Marine, 154 Ill. 2d at 103, 607 N.E.2d at 1210. The policy effectively defines known losses in terms of the general counsel\u2019s knowledge by excluding errors and omissions that Trans Union\u2019s general counsel knew might be the basis of a future claim. The only way to determine whether Trans Union\u2019s general counsel knew that a particular act might be the basis of a claim would be to look at the general counsel\u2019s legal reasoning and analysis of that act.\nFurther, as noted above, the broad cooperation clause of the policy requires Trans Union to cooperate \u201cin all investigations, including investigations regarding coverage.\u201d The parties have not cited, nor has this court found, a case dealing with a cooperation clause with similar language specifically requiring cooperation in coverage investigations. Cf. Waste Management, 144 Ill. 2d at 192, 579 N.E.2d at 327-28 (cooperation clause required insured to \u201c \u2018give all such information and assistance as the insurers may reasonably require,\u2019 \u201d but made no mention of coverage); State v. Hydrite Chemical Co., 220 Wis. 2d 51, 72, 582 N.W2d 411, 420 (App. 1998) (cooperation clause required insured to \u201ccooperate with the [insurance] company\u201d in suits, but made no mention of coverage); Bituminous Casualty Corp. v. Tonka Corp., 140 F.R.D. 381, 386 (D. Minn. 1992) (cooperation clause did not mention coverage investigations, and court held a cooperation clause would not effect a waiver of attorney-client privilege absent an expressed intent to do so).\nReading the specific language of the cooperation clause together with exclusion (g), we find that Trans Union agreed to share the legal reasoning and analysis of its general counsel regarding whether there might be future claims based on its sale of target marketing information with the Underwriters in a coverage investigation. Although such information may be privileged because it is legal advice given by the general counsel to the corporation about whether its actions could result in liability (see, e.g., Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., 189 Ill. 2d 579, 584, 727 N.E.2d 240, 243 (2000)), Trans Union, in agreeing to a policy with such particular language, has agreed to share this information with the Underwriters under these circumstances.\nThis reading of the insurance contract is further supported by Illinois public policy. As the supreme court explained in Waste Manage ment, there is a strong public policy in Illinois of encouraging disclosure between insurer and insured, \u201cwith an eye toward ascertaining that truth which is essential to the proper disposition of a lawsuit.\u201d Waste Management, 144 Ill. 2d at 190, 579 N.E.2d at 327. Part of the reason for this duty of disclosure is to prevent the insured from committing fraud upon the insurer. See Waste Management, 144 Ill. 2d at 191, 579 N.E.2d at 327. The supreme court has also emphasized that the purpose of an insurance contract is to protect the insured \u201c \u2018against loss, damage, or liability arising from an unknown or contingent event and is applicable only to some contingency or act to occur in [the] future.\u2019 \u201d (Emphasis in original.) Outboard Marine, 154 Ill. 2d at 103, 607 N.E.2d at 1210, quoting Black\u2019s Law Dictionary 721 (5th ed. 1979). If the insured knows that a loss will occur, it is not a contingency and would not be covered under an insurance contract absent an express agreement to do so. Outboard Marine, 154 Ill. 2d at 103-04, 607 N.E.2d at 1210. Thus, public policy would favor requiring an insured to share information with its insurer that would reveal whether a risk was known. The provisions of the insurance contract between the Underwriters and Trans Union promote these policies by requiring Trans Union to share information regarding whether its general counsel knew of particular losses. Accordingly, public policy supports enforcing the policy as written.\nAlthough Trans Union claims that the insurance contract provisions at issue were \u201cboilerplate\u201d provisions that appear in \u201cvirtually all liability insurance policies,\u201d and that there is no evidence showing that either party understood exclusion (g) to effect a waiver of privilege, Trans Union\u2019s claims are belied by the record. The record discloses that Trans Union is an international, billion-dollar corporation, which had retained a law firm and Aon Risk Services to broker and negotiate an insurance policy at Lloyd\u2019s of London. The policy was specifically tailored to Trans Union\u2019s situation by the Underwriters. This process took months and included various modifications to numerous provisions. Exclusion (g) was modified at least twice. The second time, the modification replaced \u201cChief Financial Officer\u201d with \u201cGeneral Counsel.\u201d Although most insurance contracts are contracts of adhesion \u2014 standard form documents created by one party with far more bargaining power than the other party (see, e.g., Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 218-19, 835 N.E.2d 801, 871-72 (2005) (observing that an individual\u2019s auto insurance policy is a contract of adhesion and declining to strictly enforce certain terms)) \u2014 that is certainly not the case here. Accordingly, we will hold the parties to their bargain.\nTrans Union alternatively asserts that even if the policy requires production of the pre-policy documents, this court should nevertheless decline to enter an order requiring the production at this time. Trans Union maintains disclosure of these documents may prejudice Trans Union\u2019s defense in the underlying lawsuits by revealing information that the plaintiffs in those suits could attempt to obtain and use to support their claims that Trans Union willfully, rather than negligently, violated the FCRA. Trans Union does not contend that the pre-policy documents do contain any information that would support a wilfulness argument. This court expresses no opinion regarding whether the pre-policy documents would support such claims.\nIn support of this contention, Trans Union relies upon the Fourth District\u2019s ruling in State Farm Fire & Casualty Co. v. Leverton, 289 Ill. App. 3d 855, 683 N.E.2d 476 (1997). In Leverton, the insurer sought a declaratory judgment that the insured had acted intentionally in striking another man with a beer bottle and that, therefore, the victim\u2019s injuries were excluded from coverage under the insured\u2019s homeowner\u2019s insurance policy. Leverton, 289 Ill. App. 3d at 855-56, 683 N.E.2d at 477. The appellate court held that the circuit court should not have ruled on whether the insured had acted negligently or intentionally in the declaratory judgment action because the same issue was the subject of a personal injury suit filed by the victim, and to resolve that issue in the declaratory judgment action would have been to prematurely resolve the personal injury suit. Leverton, 289 Ill. App. 3d at 856, 683 N.E.2d at 478.\nAlthough we adhere to the fundamental point relied upon in Leverton, which was first articulated by the supreme court in Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 197, 355 N.E.2d 24, 30 (1976), that an issue of ultimate fact upon which recovery would be based in a suit for damages should not be adjudicated in a derivative declaratory judgment action regarding insurance coverage, we find it inapplicable to the present scenario. Here, the court is not being asked to determine whether Trans Union negligently or willfully violated the FCRA; the court is being asked to determine whether Trans Union must produce certain documents, which may or may not show whether Trans Union\u2019s general counsel \u201cknew\u201d that certain of its actions \u201cmight be expected to be\u201d the basis of a future claim. This determination does not resolve the ultimate issue of fact to be adjudicated in the 14 underlying lawsuits. Accordingly, we reject Trans Union\u2019s contention that the production of the pre-policy documents should not be compelled at this time.\nMoreover, the Underwriters have offered to execute a confidentiality agreement and/or stipulate to a protective order regarding any documents that Trans Union would like to protect from the plaintiffs in the underlying cases. Therefore, we find it appropriate to affirm the judgment of the circuit court granting the Underwriter\u2019s motion to compel, but remand with directions for the circuit court to fashion, with input from the parties, and enter an appropriate protective order under Supreme Court Rule 201(c)(1) (210 Ill. 2d R. 201(c)(1)) to shield the pre-policy documents from disclosure to anyone other than the essential parties to the determination of this declaratory judgment action. We accordingly vacate the circuit court\u2019s February 9, 2005, order holding Trans Union in contempt of court, which was entered solely for the purpose of permitting Trans Union to immediately appeal the order on the motion to compel. See, e.g., Tomczak v. Ingalls Memorial Hospital, 359 Ill. App. 3d 448, 457-58, 834 N.E.2d 549, 557 (2005).\nAffirmed in part; vacated in part; cause remanded with directions.\nHOFFMAN, P.J., and ERICKSON, J., concur.", "type": "majority", "author": "JUSTICE THEIS" } ], "attorneys": [ "Christopher C. Dickinson and Kathy A. Karcher, both of Jenner & Block, LLP, of Chicago, and Christopher F. Stoll and Raymond H. Sheen, both of Heller Ehrman LLP, of San Francisco, California, for appellant.", "David M. Holmes and Stefan R. Dandelles, both of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, of Chicago, for appellees." ], "corrections": "", "head_matter": "ALEC SHARP, Indiv. and as Representative of Certain Underwriters at Lloyd\u2019s, London, et al., Plaintiffs-Appellees, v. TRANS UNION L.L.C., Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201405\u20140719\nOpinion filed March 1, 2006.\nChristopher C. Dickinson and Kathy A. Karcher, both of Jenner & Block, LLP, of Chicago, and Christopher F. Stoll and Raymond H. Sheen, both of Heller Ehrman LLP, of San Francisco, California, for appellant.\nDavid M. Holmes and Stefan R. Dandelles, both of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, of Chicago, for appellees." }, "file_name": "0064-01", "first_page_order": 80, "last_page_order": 92 }