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Attorney Client Privilege Under Attack: Disclosing Defendant Physicians as 213(f)(3) Witnesses

June 1, 2020

An issue has arisen in the context of disclosing direct defendant physicians as 213(f)(3) witnesses. Certainly, a party fits under the plain language as 213(f)(1) and 213(f)(3). Recently, in Cook County, Plaintiff’s attorneys have sought discovery production of communication between direct defendant physicians who are disclosed as (f)(3) witnesses and his/her attorneys. The position that has been taken by some judges in the Law Division is that when an attorney and physician client decide that the client will be disclosed as an expert witness pursuant to 213(f)(3), all communication between the attorney and defendant is no longer privileged, and it is discoverable pursuant to 213(f)(3).

This presents a problem for both the physician and the attorney representing the physician. How is a direct defendant physician able to offer opinion testimony relating to the standard of care as well as opinion testimony rebutting any Plaintiff expert witness without having to disclose protected communication between the physician and his or her attorney? The answer  is not perfectly clear, but some Illinois Appellate decisions shed some light on the issue.

In Jackson v. Reid, 402 Ill. App. 3d 215 (3rd Dist. 2010), the Third District held that Plaintiff’s cross examination of a named defendant physician, who was disclosed pursuant to 213(f)(3), should not have been restricted by work product or principles of attorney-client privilege. Id. at 234. There, the Court determined that once Defendant Reid elected to testify as “an opinion witness,” her expert opinions “previously shared with counsel prior to trial,” were no longer protected because the “privilege ha[d] been waived.” Id. The Court concluded that an expert witness, who is also a party, is subject to the same scope of cross examination as any other expert witness. Id. In Jackson, however, the holding derived from the issue as to whether or not the Defendant, as an (f)(3) witness, could be cross examined relating to medical literature the defendant presumably reviewed with her attorney, but were not produced pursuant to a discovery request. The Jackson Court steered clear from offering any opinions about the context of conversations/correspondences between the attorney and Defendant physician, and held only that the Plaintiff should have been able to cross examine the Defendant physician as to the reliability of the literature relied upon, even though this was previously shared with counsel prior to trial. The Court determined that this literature was not protected by work product because counsel did not prepare it. Further, the Court held that because Defendant was disclosed pursuant to (f)(3), the Defendant’s discussions with counsel with regards to her opinions were waived, presumably with the approval of counsel.

The Jackson Court could, however, provide a “scope” of what conversations a Plaintiff’s attorneys may seek through discovery. The Jackson Court does not exactly directly “limit” attorney client discussions, but it held that the discussions with counsel relating to the Defendant physician’s opinions were no longer privileged. Opinions are disclosed in 213(f)(3) disclosures, and the Jackson decision offers some guidance for attorneys and physician Defendants to be careful when conducting communications relating to opinions. The Jackson decision could also be helpful to argue against disclosure of all communications relating to opinions. Certainly, a Defendant physician and his/her counsel discuss which opinions to disclose and which opinions not to disclose and further strategize how to disclose these opinions, and how he/she arrived at these opinions. The Jackson Court did not specifically hold that the aforementioned communications were discoverable, but only that the “expert opinions previously shared with counsel” are discoverable. This “end result” communication is, therefore, discoverable, but the “strategy” communications relating to the expert opinions are not explicitly discoverable pursuant to the Jackson holding.

In an unpublished opinion, the Third District Court of Appeals upheld the trial Court’s denial of Plaintiff’s Motion to Compel a discovery request relating to communications between defendant physician client and attorney. See McCombs v. Paulsen, 2013 IL App (3d) 120366-U. In McCombs, Plaintiff sought disclosure of communication between defendant and defendant’s attorney after defendant had been disclosed as an (f)(3) witness. Plaintiff sought deposition summaries prepared by defense counsel that were communicated about with the defendant and provided to defendant for review. Id. at ⁋ 49 Plaintiff’s position was that the moment the defendant relied on these summaries in forming his opinions, the documents and communication became discoverable. Id. The Court held that “[a]s to privileged attorney-client communications, these summaries…reveal the attorney’s mental process in evaluating the communications and determining the important aspects of depositions.” Id. at 50. Further, the Court held that this communication was only between the defendant and his defense counsel in preparation for trial, and as such, were protected by the attorney-client privilege. Id. The unpublished opinion in McCombs could offer guidance when bolstering a defendant’s argument that the Jackson Court limits discoverable communications to expert opinions only and not “strategy” communications.

Since 1996, Rule 213 effectively repealed prior Supreme Court Rule 220, regarding expert witnesses. Appellate Courts in Illinois have generally been silent as to whether a direct defendant physician may testify as to his/her opinions as a “lay witness” pursuant to 213 (f)(1). Previously, Illinois Supreme Court Rule 220 served as the disclosure rule in Illinois. In Fawcett v. Reinersten, 131 Ill. 2d 380 (1989), the Illinois Supreme Court carved out a defendant physician exception to disclosure rules. The Supreme Court held that defendant-physicians need not be disclosed as expert witnesses. Id. at 384. Although the disclosure rules previously referred “retained witnesses,” the Fawcett Court’s logic that a defendant physician not disclosed as an expert witness has the knowledge, training, and expertise to render opinion testimony at trial, including opinions as to standard of care. Although rule 220 has been repealed, the Fawcett Court provides reasoning that surely a Defendant physician may offer opinions even though not disclosed as an “expert witness” because he/she has the knowledge, training, and expertise to offer opinion testimony as to the standard of care.

Overall, based on having observed recent rulings and having discussions with judges within the Law Division in Cook County, it has been the position of the Law Division in Cook County to compel defendant (f) (3)’s to produce communications from the moment the Defendant is disclosed as an (f)(3) witness.[1] Defense counsel may want to limit communications between he/she and the client relating to opinions once the Defendant has been disclosed as an expert witness in order to limit what must be produced.  Law Division judges, however, are likely to perform in camera inspections for any privilege claims and compel production on a case by case basis. Some communications are obviously meant to be privileged, however, discussions between counsel and defendant named as an (f) (3) surrounding opinions to be rendered are not meant to be privileged.

Defense counsel are faced with several issues to be discussed with the client. Should a Defendant be disclosed as an (f)(3), it is important that defense counsel lets the Defendant know that some communications may not be privileged. Should a Defendant and counsel choose to not risk waiving the privilege, the safest route is to not disclose a physician defendant as an (f)(3). This route runs the risk of a trial judge barring or limiting opinion testimony of a Defendant physician relating to the standard of care and solely relying on defending the matter with retained expert witnesses. With this route, it would be important to convince a trial judge that obviously a Defendant physician is qualified to opine about the standard of care relating to his/her field. (It will also be important to make sure that the physician Defendant discloses that he/she complied with the standard of care within an (f)(1) disclosure and/or testifies during his/her discovery deposition that he/she complied with the standard of care so as to avoid any additional 213 objections relating to standard of care testimony). Standard of care opinions are frequently disclosed through non-expert discovery regardless of a designation of a witness. Most commonly, Defendant physicians frequently opine that they have complied with the standard of care during their respective party deposition. Disclosing this opinion during a direct Defendant physician non- (f)(3) discovery deposition should allow for the defendant physician to offer this opinion at trial without having been disclosed as an (f)(3) witness. This, however, would not allow for the Defendant physician to be allowed to offer opinion testimony to rebut some or all of Plaintiff’s experts’ testimony, and Defendant would thus rely on a retained expert witness for that.

Although the issue of production requests for communications between attorney and a defendant (f)(3) has arisen, it has not been frequently visited, but as Plaintiff’s attorneys become more aware of the possibility of production, it will be utilized much more frequently. It is important that Defense counsel limit/craft communications with the client after the expert disclosure and inform the client of the possibility of “waiver” of attorney client privilege for certain communications. Defendant physicians and their respective attorneys are ultimately in a catch 22 because they fit both (f)(1) and (f)(3) definitions; and they face the possibility of being compelled to disclose certain communications with their attorneys. Thus, these communications, may in fact not be applicable to one of the most important privileges in legal existence: the attorney client privilege.

[1] The current climate of decisions within the Law Division of Cook County relating to this issue seems to take the issue on a case by case basis. The Court favors all communications relating to strategy and formulation between F3 Defendant and attorney discoverable; any work product used during these “communications” (summaries, reports, etc.), however, would likely be deemed to be privileged.

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