“Self-Critical Analysis Privilege” Nonexistent in Illinois State Courts

Harris v. One Hope United, Inc. | 2015 IL 117200

April 2015

Although our focus is Seventh Circuit jurisprudence, occasionally we come across a case that is so significant that we are compelled to bring it to your attention. Harris v. One Hope United, Inc., 2015 IL 117200, is such a case.  In Harris, the Illinois Supreme Court found that the “self-critical analysis privilege” does not exist in Illinois courts. Therefore, a private social service agency’s internal review of an infant’s death while the infant and her family were under the agency’s care was not privileged, and consequently discoverable in civil litigation.

In Harris, One Hope United, through a contract with DCFS, was charged with coordinating care for an infant who DCFS feared was being neglected or abused. During the course of this care, the infant drowned in a bathtub while her mother was bathing her. During deposition discovery, One Hope disclosed the existence of a report generated based on internal work product in an effort to promote “continuous quality review” of their services. The plaintiff sought the report. One Hope refused.  Eventually, the Supreme Court’s decision followed.

The “self-critical analysis privilege” exists in federal court. Its purpose is “to protect from disclosure documents that contain candid and potentially damaging self-criticism, where disclosure of those documents would harm a significant public interest.” The privilege is focused on medical-care issues, and has been cautiously expanded to “activities that will protect human life or public health.” For federal cases employing this privilege, see Scott v. City of Peoria, 280 F.R.D. 419 (C.D. Ill. 2011), Deel v. Bank of America, N.A., 227 F.R.D. 456 (W.D. Va. 2005), and Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423 (9th Cir. 1992) (outlining a four-part test to apply the privilege).

The Illinois Supreme Court, noting a reluctance for judicially created privileges, the legislature’s statutory opportunities to create such a privilege, and its apparent decision not to, declined to recognize the “self-critical analysis privilege” in this context. (The Court did note that in other contexts such a privilege does exist – e.g., Medical Studies Act shielding internal review of medical issues). Significantly, in Harris, there was absolutely no discussion of applicable privileges relating to legal counsel because One Hope conducted an internal review (presumably not conducted by legal counsel), and it was deemed a “quality review process,” not specifically linked to litigation. In counseling Illinois clients (especially those involved in providing care to the public), Harris should be considered in guiding clients through the methods and contours of an internal review process.