The Illinois Supreme Court accepted appeal of an appellate court’s refusal to recognize the self-critical analysis privilege. The Court’s decision should determine (1) whether the underlying policies of the self-critical analysis privilege warrant its recognition and (2) whether the legislature should have complete dominion over the evidentiary-privilege development or whether courts may develop and refine privileges through normal common-law evolution.
An infant died while in her mother’s care and in One Hope United’s family services program. The public guardian, acting as the infant’s estate administrator, filed a wrongful death suit against the mother and One Hope. Discovery revealed that One Hope investigated the death and prepared a post-death “Priority Review” report that evaluated its services.
One Hope refused to produce the Priority Review report on grounds that the self-critical analysis privilege protected its disclosure. The trial court refused to recognize the privilege, held One Hope in “friendly contempt,” and set the stage for appeal.
The Illinois Appellate Court identified two competing concerns. On on the one hand, evidentiary privileges thwart the truth-finding process. On the other hand, the self-critical analysis privilege encourages companies to engage in critical internal investigations and permits their employees to participate candidly and honestly in the post-event critique.
But the court did not provide a satisfying analysis of these concerns. The court noted that One Hope’s argument for the privilege’s adoption resonated, but “believe[d] the overriding need to determine the truth with respect to the cause of death of an infant overrides the desire of One Hope to keep its self-evaluations confidential.”
And the court seemed perplexed whether it could even adopt a new evidentiary privilege as part of Illinois’ common law. Although noting that a 2011 amendment to the state evidence rules provides that evidentiary privileges “shall be governed by the principles of the common law as they may be interpreted by Illinois courts in the light of reason and experience,” the court nonetheless determined that “the establishment of a new [privilege] is a matter best deferred to the legislature.” (emphasis in original). Harris v. One Hope United, Inc., 2 N.E.3d 1132 (Ill. App. Ct. 2013). You may read the appellate court’s opinion here.
The Illinois Supreme Court accepted the case for review on March 26, 2014. Although some federal courts, including the USDC for the Northern District of Illinois, recognize a common-law self-critical analysis privilege, several states have not addressed the issue. The Illinois Supreme Court’s decision, therefore, could prove influential as other states consider the merits of this evidentiary privilege.
But the court will first have to decide whether evidentiary privileges may originate through normal common-law development, or whether they remain solely in the state legislature’s domain. The 2011 evidence rule tracks Federal Rule of Evidence 501 and appears on its face to permit common-law privilege development. The appellate court did not satisfactorily address this issue, but the Supreme Court should do so. The One Hope case is certainly one to watch.