Doe v. Township High School District 211

2015 IL App (1st) 140857

Opinion

2015 IL App (1st) 140857 No. 1-14-0857 Opinion filed June 5, 2015

FIFTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

JANE DOE, Individually and as Legal ) Appeal from the Circuit Court Guardian of Jane Doe, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) Nos. 12 L 2036, 13 L 4681, 13 L ) 4685, 13 L 4686, 13 L 4705 TOWNSHIP HIGH SCHOOL ) DISTRICT 211, ) The Honorable ) Daniel T. Gillespie Defendant-Contemnor-Appellant ) Judge, presiding. ) (Tom McNamara, Theresa Busch and ) Jackie Gatti, n/k/a Jackie Zydek, ) ) Defendants-Contemnors; ) ) Michael E. Kujawa, ) ) Contemnor-Appellant). )

JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Reyes concurred in the judgment and opinion.

OPINION No. 1-14-0857

¶1 Plaintiff Jane Doe,1 a special education student at Hoffman Estates High

School, sued defendants Township High School District 211 (the District), two

teachers and one principal, alleging negligence and willful and wanton conduct

for their alleged failure to prevent another student from having sexual relations

with plaintiff on multiple occasions.

¶2 In this appeal, the District and its attorney, Michael Kujawa, appeal a

contempt order that was entered against all defendants 2 at their request. After

an in camera review of certain documents, the trial court ordered Kujawa's

client, the District, to produce two items which the District claimed were

protected by the attorney-client and work-product privileges, and which the

District refused to produce. The two items are: (1) the notes of Dr. Daniel

Cates, the school's special education director, which he made while

investigating claims of inappropriate sexual conduct at the school; and (2) a

DVD with two video recordings made by Dr. Cates showing where some of the

1 Although the name "Jane Doe" is used to refer to both the abused student and her legal representative, in this opinion we will use the term "plaintiff" and "Doe" to refer to the student. 2 Defendants' motion for contempt stated that it was filed by all defendants including not only the District but also the individual defendants, and it asked the trial court to hold both defendants and their counsel in civil contempt. The trial court's contempt order then granted defendants' motion. See infra ¶ 47 (discussing who was held in contempt). 2 No. 1-14-0857

alleged conduct may have occurred.3 In order to permit the District to appeal

the trial court's discovery ruling, the trial court entered the contempt order4

which is the subject of this appeal.

¶3 On this appeal, defendants ask this court: (1) to reverse the trial court's

discovery order directing the District to produce the contested items; and (2) to

vacate the contempt order and fine. In response, plaintiff argues: (1) this court

should not consider defendants' claims because of, among other reasons, the

appellate record is insufficient; (2) in the alternative, if we do address the merits

of the appeal, we should affirm the trial court's discovery order; and (3)whether

we affirm or reverse the discovery order, we should not vacate the contempt

order and its nominal $500 fine.

¶4 For the following reasons, we could conclude, first, that defendants

forfeited the discovery issue for appeal by failing to provide a sufficient record.

Specifically, defendants failed to include the transcript of the hearing where the

trial court ruled on the underlying discovery issue, which is the sole basis of the

contempt order.

3 Although the parties and the trial court consistently refer to the video recording as singular, there are actually two recordings on the DVD in the sealed envelope in the appellate record. 4 Although the trial court's February 21, 2014, written contempt order did not specifically state that it was a friendly contempt, the trial court described the order as being "held in friendly contempt." 3 No. 1-14-0857

¶5 However, we are inclined to decide this case on the merits, and the

affidavits of Dr. Cates and the reasons stated by the trial court persuade us that

the trial court's discovery order was proper. Lastly, we vacate the contempt

order, in light of the fact that it was a friendly contempt based on a good faith

effort by defense counsel to secure an interpretation of an issue to serve his

client and the court.

¶6 BACKGROUND

¶7 Although the allegations of the underlying lawsuit are disturbing, what

concerns us on this appeal is not the subject matter of the complaint but whether

certain documents are protected by the attorney-client and work-product

privileges. Thus, we set forth the allegations briefly and discuss at greater

length the disputed items and the procedural history surrounding the trial court's

order to produce them.

¶8 I. Pleadings

¶9 A. Complaint

¶ 10 Plaintiff, and other similarly situated students, initially filed suit in 2006.

We discuss here plaintiff's most recent complaint which is her seventh amended

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complaint, filed on October 24, 2012. In this complaint, plaintiff made the

following allegations.

¶ 11 Plaintiff was a developmentally disabled student who attended Hoffman

Estates High School (Hoffman). All students enrolled in the special education

program were also a part of the "Secondary Work Experience Program"

(SWEP). The District had employees who were required to walk the SWEP

students from class to class and through the buildings.

¶ 12 Defendants Tom McNamara and Jackie Zydek were teachers in the

SWEP program at Hoffman, and defendant Therese Busch was the principal at

Hoffman, which was owned and managed by defendant District.

¶ 13 Christopher Girard, another student, was arrested by the Schaumburg

police department and charged as an adult with aggravated criminal sexual

assault of a minor child on July 21, 2004, while he was attending Hoffman; and

defendants knew or should have known that Girard had been so charged.

Defendants knew or should have known that Girard was sexually deviant, and

that it was not safe for him to interact with developmentally challenged female

students. 5 From July 2004 until October 2005, while attending Hoffman, Girard

would expose his penis, masturbate, and touch the breasts, vaginas and buttocks 5 Although the complaint does not explicitly state that Girard was not a developmentally challenged student, that may be reasonably inferred from the allegation that he should not have been allowed to interact with "developmentally challenged female students." 5 No. 1-14-0857

of female students during class at Hoffman in view of his teachers, including

defendants McNamara and Zydek.

¶ 14 From August 2005 to October 2005, plaintiff was a student in

McNamara's physical science class, which was taught in the wrestling room;

and she was sexually assaulted by Girard during McNamara's class. Girard

assaulted her by touching her breasts, vagina and buttocks; by inserting his

penis into her vagina and buttocks; and by making her touch his penis.

¶ 15 On September 21, 2005, parents of another female student in the SWEP

program informed defendant Zydek that there was a closet or room in the

science room in which Girard would have sex with the girls during class, and

that he also had sex with them in the gymnasium during the lunch period.

Zydek said that she would talk to McNamara and others to determine if they

noticed anything.

¶ 16 Plaintiff alleged that defendants acted negligently, as well as willfully

and wantonly.

¶ 17 B. Defendants' Answer

¶ 18 In their answer to plaintiff's seventh amended complaint, defendant

District admitted that it owned and operated Hoffman; that it employed

defendants McNamara and Zydek who were teachers in the SWEP program;

that defendant Busch was the principal at Hoffman; that plaintiff was a

6 No. 1-14-0857

developmentally disabled student who was also a SWEP student at Hoffman;

and that defendant McNamara taught some of his physical science classes

between August and October 2005 in the wrestling room. Defendants also

admitted that "on or about 9/21/05 [defendant] Zydek agreed to discuss with

other District employees whether they had noticed anything unusual with

[Christopher] Girard or students in the SWEP Program." Defendants denied

most of plaintiff's other allegations.

¶ 19 Defendants asserted six affirmative defenses, which alleged either some

form of immunity or no private right of action.

¶ 20 II. Dr. Cates' First Affidavit

¶ 21 The subject of this appeal concerns notes and two video recordings made

by Dr. Daniel Cates, the District's director of special education. Discussing the

creation and content of these items, Dr. Cates stated in an affidavit, dated

January 16, 2014, that:

"1. In October 2005, I served as the Director of Special Education for

Township High School District 211.

2. As the Director of Special Education, it was within my typical duty

to perform requests made by the Superintendent, Dr. Roger Thornton,

and to work with a number of different attorneys surrounding student

matters.

7 No. 1-14-0857

3. Upon learning that one or more students with a cognitive

impairment and served in the special education program at Hoffman

Estates High School may have been engaged in sexual relations of any

kind on the campus, I was asked by then-Superintendent Dr. Roger

Thornton to investigate whether I could locate any information to

indicate culpability or legal exposure on the District's part.

4. I was asked to gather and record a complete understanding of what

had happened surrounding the report that multiple students had been

involved in a matter of sexual relations taking place on the campus of

Hoffman Estates High School and to provide a summary of my findings

to the following individuals: Superintendent, Dr. Roger Thornton;

Associate Superintendent, Mr. David Torres; and legal counsel, Mr. Mike

Kujawa [.]

***

6. My investigation included multiple interviews with staff members

at Hoffman Estates High School for the following purposes related

specifically to potential legal exposure and scrutiny in any potential

lawsuit ***:

(a) To understand the manner in which students from the junior high

schools were reviewed and recommended for certain programs ***

8 No. 1-14-0857

and specifically into the special education program at Hoffman

Estates High School;

(b) To understand and record the sequence of actions and traffic

patterns that students likely followed in order to engage in the alleged

behavior on the campus of Hoffman Estates High School;

(c) To review the manner in which lower-functioning students'

whereabouts are known, tracked or recorded, specifically during the

lunch period at Hoffman Estates High School.

7. Following my interviews, I met with Dr. Thornton, Mr. Torres and

Mr. Kujawa in the superintendent's conference room to summarize what I

had gathered and learned.

8. It has been my practice to record personal notes on yellow legal-

style notepads or personal stationery, when available.

11. In addition, I created a video file of the pathway that I believed the

student might have taken in order to get to the location where the alleged

events were reported to have taken place. This video was shared one

time only during the summary meeting held with Dr. Thornton, Mr.

Torres and Mr. Kujawa.

9 No. 1-14-0857

13. My notes were stored in *** the same location in my office from

the time they were created until the time they were provided to legal

counsel. At no time were my notes or yellow notepads stored with other

typical student records ***.

14. My involvement in the case also involved direct contact with

families, staff members from the Children's Advocacy Center and staff

members from a variety of special education programs for the purpose of

offering assistance to the students reported to have been involved ***.

17. In no way or at any time was there ever any reference on the part

of Dr. Thornton or anyone from the District to create any association

between any pending lawsuit and my attempts to locate and the District's

offer to provide therapeutic services from the Children's Advocacy

Center, any special education program or any private therapeutic service

or program."

¶ 22 Plaintiff disputes whether this affidavit was considered by the trial court

because the affidavit bears no file stamp indicating receipt by the trial court,

and the affidavit is also not attached to a file-stamped document.

¶ 23 However, neither party disputes the basic thrust of the document, which

is that Dr. Daniel Cates was instructed by his supervisor to investigate the facts

10 No. 1-14-0857

surrounding claims of inappropriate sexual conduct and that he then reported

these findings to his supervisor, as well as to an associate superintendent and

the District's attorney. Cates does not claim that his actions were prompted by

or directed toward claims made by plaintiff or her family. He does state that his

involvement in the case is twofold: (1) to "locate any information to indicate

culpability or legal exposure on the District's part"; and (2) also "for the purpose

of offering assistance to the students reported to have been involved."

¶ 24 Other than stating that he was the special education director in October

2005, Cates' affidavit does not provide any dates. While the Cates' affidavit

lacks dates, there are some dates provided in the privilege log, discussed below.

¶ 25 III. Privilege Log

¶ 26 Defendants submitted an "Amended Privilege Log" to the trial court on

January 22, 2014. The log contains a column on the left for "Bates Page

Numbers," and a column on the right for "Description of Document."

¶ 27 The descriptions state: (1) that pages 1 through 144 are the "[p]ersonal

notes of Dan Cates"; (2) that pages 145 through 156 are the "personal notes of

11 No. 1-14-0857

Timothy Little, Assistant Principal for District 211"; and (3) that page 157 is an

email from Superintendent Thornton to Cates.

¶ 28 There are 33 separate "descriptions" on the privilege log for the Cates

documents. However, the descriptions are identical, with only the dates

changing. The descriptions state:

"Personal notes of Dan Cates, Director of Special Education for

District 211, regarding his personal fact-finding mission into the alleged

events, including but not limited to: conversations with various faculty

and staff members and his thoughts and impressions regarding the same.

They were created for his exclusive use and benefit, were not distributed

to any third parties, were made in anticipation of litigation, and were kept

in his personal file at District 211 ([date])." (Emphasis added.)

¶ 29 In the privilege log, as quoted above, defendants acknowledge, as they

did in his affidavit, that Dr. Cates was on a "fact-finding mission." Although

the privilege log states that it lists the items for which "defendants claim

privilege" and defendants repeatedly asserted that Cates' notes were protected

by the work-product and the attorney-client privileges and the log repeatedly

states that each item was created "in anticipation of litigation," the log itself

does not reiterate the specific privileges.

12 No. 1-14-0857

¶ 30 The log provides the dates of Cates' notes as ranging from September 20,

2005, through September 17, 2007. Thus, Cates' notes began when the conduct

was allegedly still occurring, since plaintiff's complaint alleged that the conduct

at issue occurred between August and October 2005. In addition, the log dates

Cates' notes as starting on September 20, 2005, which is the day before parents

notified defendant Zydek. Plaintiff's complaint alleges that parents of another

SWEP student notified defendant Zydek on September 21, 2005, of

inappropriate conduct by Girard; and defendant's answer admitted that, on

September 21, defendant "Zydek agreed to discuss with other District

employees whether they had noticed anything unusual" with respect to Girard

and students in the SWEP program. Cates' notes started before this notification

of Zydek. The notes also started before plaintiff or other similarly situated

students filed suit, which occurred in 2006.

¶ 31 In addition to Cates' notes, the log also lists: (1) the "[p]ersonal notes of

Timothy Little, Assistant Principal for District 211," which are pages 145

through 156; (2) email correspondence from Superintendent Thornton to Cates,

dated October 6, 2005, which is page 157; and (3) a video recording made by

Cates, which is undated in the log. We digress for a moment to address the

issue of Little's notes and Thornton's email, since the parties refer repeatedly to

all of these 157 pages as Cates' notes.

13 No. 1-14-0857

¶ 32 While the trial court's discovery and contempt orders refer only to Dr.

Cates' "notices and video,"6 we lack the transcript of the January 31, 2014,

hearing, where the trial court issued its discovery ruling, to know whether the

intent of the court was to include pages 145 through 157 which are, according

to the privilege log, Little's notes and Thornton's email. The parties' intent

appears to have been to include these documents as part of Cates' notes, since

the supplemental record on appeal contains a "Master List of Documents,"

apparently prepared by defendants, which states that all 157 pages are Cates'

personal notes and are at "issue in this appeal." 7 This list is quoted below, in

the section on the appeal. However, defendants assert in their brief to this court

that plaintiff sought and defendants produced all the notes of the four assistant

principals, which includes Little. To the extent that defendants intended to

challenge on this appeal the release of Little's notes and Thornton's email to

Cates, that issue is waived for our review, as we explain in our analysis below.

¶ 33 The log is attached to a letter, dated January 22, 2014, which stated that

defendants were providing a courtesy copy to the court of "Defendants'

Amended Privilege Log and Documents," and the "Video recording by Dr.

Daniel Cates." The bottom of the letter states: "cc w/o Privilege Log 6 Although the contempt order, dated February 21, 2014, refers to "notices and video," the trial court, in all probability, meant to say notes and video. 7 Similarly, defendants' brief on appeal refers repeatedly to Cates' "157 pages of personal, confidential notes." 14 No. 1-14-0857

Documents & Video Recording enclosures: Kevin Golden[,] Catherine

Massarelli," the Doe attorneys. This notation indicates receipt of the log by

plaintiff, but without the actual documents and video recording provided to the

trial court.

¶ 34 IV. The Trial Court's Discovery Order

¶ 35 On January 31, 2014, the trial court entered a discovery order which

stated:

"IT IS HEREBY ORDERED:

(1) The Court finds that the notes of Dr. Daniel Cates were done as

fact-finding and, therefore, are not privileged and should be turned over

in 14 days on or before February 14, 2014;

(2) The Court finds the notes of Dr. Daniel Cates were done as fact-

finding and, therefore, are not privileged with the exception of pages 47-

51, 68, 86-87, 103, 105 & 144, which the Court is requiring Dr. Cates to

produce an affidavit stating whether the pages are regarding his

conversations w/Mike Kujawa in full. Remaining pages to be turned over

within 14 days on or before February 14, 2014;

(3) The video recording by Dr. Daniel Cates was done as part of his

fact-finding and, therefore, is not privileged and should be turned over on

or before 14 days or by February 14, 2014; and

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(4) Plaintiff's Motion for Sanctions is denied but Defense Counsel is

advised to abstain from any further speaking objections during the

remaining depositions."

¶ 36 In her appellate brief, plaintiff observes: (1) that a hearing was held on

January 31, 2014, and (2) that the appellate record does not contain a transcript

for it. In their reply brief, defendants do not deny this assertion. Thus, the

appellate record fails to contain a transcript or bystander's report for the hearing

where the trial court decided the underlying discovery issue.

¶ 37 Addressing this absence in their appellate brief, defendants state: "The

Record on Appeal contains the transcript of the [February 21, 2014,] hearing

before the trial court on *** Defendants' motion for friendly contempt. At the

time, as the [February 21] transcript reflects, the trial court knew its prior

ruling***." The brief then quotes the trial court as stating: "I think I took out

anything that I saw that involved consultations with your firm." No further

explanation is offered for the absence of a transcript or bystander's report for the

January 31, 2014, hearing where the issues, that are now before us on review,

were decided by the trial court.

¶ 38 V. Dr. Cates' Second Affidavit

¶ 39 In the January 31, 2014, discovery order, the trial court ordered Dr. Cates

to submit an affidavit with respect to pages 47 through 51, 68, 86 through 87,

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103, 105 and 144. In response to this order, Dr. Cates stated in an affidavit,

dated February 11, 2014:

"1. I affirm that I was the author of each of the enclosed notes.

2. I wrote each of the notes contemporaneously with conversations I

had with different people.

3. The pages are numbered in the lower right hand corner.

4. I affirm the following:

- I wrote the notes contained on pages 047,048,049, 051.

- I wrote each of these notes specifically as part of client attorney

privilege for the purpose of legal consultation and liability protection

with Mike Kujawa or Nike Nugent.

- I wrote the notes on the top of page 068 during a telephone

conversation I had with the parent of [CK] regarding a potential transfer

to the school to which [CK] was eventually transferred.

- I wrote the notes on pages 086, 087, 103, 105, 144 specifically as

part of client-attorney privilege for the purpose of legal consultation and

liability protection with Mike Kujawa."

¶ 40 In this affidavit, Cates appears to affirm that he is "the author of each of

the [157 pages of] enclosed notes," despite the fact that the amended privilege

log, dated January 22, 2014, describes pages 145 through 156 as the personal 17 No. 1-14-0857

notes of Assistant Principal Little, and page 157 as an email from

Superintendent Thornton.

¶ 41 The same problems exist with this affidavit as with Cates' January 16,

2014, affidavit. Plaintiff disputes whether the February 14, 2014, affidavit was

considered by the trial court because the February 14 affidavit bears no file

stamp indicating receipt by the trial court, and the affidavit is also not attached

to a file-stamped document.

¶ 42 However, plaintiff does not contest on this appeal the trial court's ruling

with respect to these few documents, so the factual assertions contained in the

February 14 affidavit are not necessary to our resolution of this appeal.

¶ 43 VI. Defendants' Motion to be Held in Contempt

¶ 44 On February 14, 2014, defendants filed a motion asking the trial court to

hold them in contempt of court. The motion stated that it was filed by all

defendants including not only the District but also the three individual

defendants. Defendants asked the court to hold both them and their counsel in

civil contempt pursuant to Norskog v. Pfiel, 197 Ill. 2d 60 (2001), and Illinois

Supreme Court Rule 304(b)(5) (Ill. S. Ct. R. 304(b)(5) (eff. Feb. 26, 2010)

("[a]n order finding a person or entity in contempt of court which imposes a

monetary or other penalty" is immediately appealable without a special

finding)). Defendants stated that they sought to be held in contempt so that they

18 No. 1-14-0857

could take an immediate interlocutory appeal from the trial court's January 31,

2014, discovery order. Specifically, defendants stated:

"Now come the Defendants, Township High School District 211, Tom

McNamara, Theresa Busch, Jackie Gatti, n/k/a Jackie Zydek (hereinafter

referred to collectively as the 'District'), by and through their attorneys,

Judge, James and Kujawa, L.L.C. *** [who] respectfully request that this

Court hold the District (and its counsel) in civil contempt of court ***."

¶ 45 In her appellate brief, plaintiff observes that a hearing was held on

February 14, 2014, and that the appellate record does not contain a transcript or

bystander's report for it. In their reply brief, defendants do not deny this

assertion.

¶ 46 VII. The Trial Court's Contempt Order

¶ 47 On February 21, 2014, the trial court entered an order, which stated in

relevant part:

"IT IS ORDERED:

-- Plaintiffs' Motion for sanctions is denied.

-- Defendants' Motion to be held in civil contempt of Court for failure

to comply with the Court's 1/31/14 discovery order to produce Dr. Daniel

Cates' handwritten notices and video is granted. This Court finds the

Defendants in civil contempt of Court and thereby imposes a monetary

19 No. 1-14-0857

contempt citation in the amount of $500.00, payment of which is stayed

pending Defendants' appeal pursuant to S.Ct. R. 304(b)(5).

-- Discovery to continue, with the timing of Dan Cates' deposition

reserved for future ruling."

¶ 48 Although the trial court's order did not explicitly state that attorney

Michael Kujawa was also held in contempt, the order states that defendants'

motion is granted and defendants' motion explicitly asked for both defendants

and their attorney to be held in contempt. Thus, the trial court's order holds

both defendants and their attorney in contempt, as they requested. Since

defendants' motion stated that it was filed on behalf of not only the District but

also the three individual defendants, the individual defendants are also included

among the "defendants" held "in contempt" by the trial court's order.

¶ 49 The transcript of the February 21, 2014, hearing is the only transcript in

the record on appeal. At the beginning of the hearing, plaintiff's counsel

summarized the events of the prior few weeks, stating: that, on January 31,

2014, after an in camera inspection 8 of the disputed items, the trial court had

entered an order directing defendants to produce Dr. Cates' notes and video;

that, on February 5, 2014, defense counsel sent a letter stating defendants were

not going to comply with the order; that on February 11, 2014, Erica 8 Plaintiff's counsel also repeated later in the proceeding that the trial court "did an in camera review of the records." 20 No. 1-14-0857

Maldonado, an associate in Kujawa's firm, stated that she would not proceed

with depositions unless plaintiff waived her right to the disputed items; that

later on February 11, plaintiff's counsel informed Kujawa that plaintiff intended

to file a motion for sanctions and not for friendly contempt; that, on February

13, plaintiff filed a motion for sanctions and defendants filed an emergency

motion for friendly contempt which they noticed for February 14; and that, on

February 14, both parties appeared and the trial court struck defendants' motion

on the ground that it was not an emergency. After the emergency motion was

stricken, defendants filed another contempt motion on February 14, which the

trial court heard on February 21.

¶ 50 On February 21, the two issues before the trial court were plaintiff's

motion for sanctions, and defendants' motion for friendly contempt. Plaintiff's

motion asked the trial court to issue sanctions for defendants' disregard of the

January 31 discovery order. Plaintiff also argued that defendants were not

acting in good faith when they filed their "emergency" motion for contempt,

since it was prompted by the knowledge that plaintiff was about to file a motion

for sanctions. In response, defendants asked for a friendly contempt order for

the purpose of allowing them to appeal the prior January 31 discovery order,

and they suggested in their motion that the court set a $25 contempt fine.

21 No. 1-14-0857

¶ 51 At the February 21 hearing, Kujawa argued that his "conversations with

Dr. Cates are contained within those notes that counsel seeks to have

produced." To which the trial court responded:

"THE COURT: Just a second. I think I took out anything that I saw

that involved consultations with your firm. I think I told [your associate]

that last time

KUJAWA: Yes, you did.

THE COURT: So it's nothing involving a direct conversation

between you as the attorney and the client in what I ordered to be turned

over."

¶ 52 The trial court then issued the following ruling concerning both sanctions

and contempt:

"THE COURT: Talking about sanctions, [Supreme Court Rule]

219(c)9 gives a lot of discretion to the trial judge, and this trial judge has

the authority to control discovery; and in this case I'm very disappointed

in my efforts because it's been seven years it appears since the incident

occurred and we're still talking about discovery, and that's proceeding at

9 Supreme Court Rule 219(c) provides that, when a party fails to comply with a discovery order of the trial court, the court may take a number of different actions, including ordering a monetary penalty or holding the party in contempt. Ill. S. Ct. R. 219(c) (eff. July 1, 2002).

22 No. 1-14-0857

a glacial pace. And now one of the parties wants to have it go back to the

Appellate Court for a second time.[ 10] That's very disappointing.

So when I read the chronology that plaintiff set out where Ms.

Maldonado [an associate in the Kujawa firm] refused to comply with my

order, I was very, very disappointed. And but as counsel for the School

District explains, he did that because he wanted – he intended right then

within six days of the order to appeal it, and that's why he instructed

Erica Maldonado not to tender those documents because he wants to

appeal that, but he would be happy to do the deps without them.

So reading it from plaintiff's point of view, I can see how they got

extremely upset as I did. It looks like Erica Maldonado just felt she

wasn't going to do what she was ordered to do and work her way around

it, but I see that the School District had decided to appeal it, and because

they want to appeal it, they are happy to finesse that by doing the dep

10 In Jane Doe v. Village of Schaumburg, 2011 IL App (1st) 093300, this court affirmed the trial court's dismissal of plaintiff's claims against defendants Village of Schaumburg, the Schaumburg police department, several Schaumburg police detectives, the Village of Hoffman Estates and the Hoffman Estates police department. But see Payne v. City of Chicago, 2014 IL App (1st) 123010, ¶ 45 (observing that Ries v. City of Chicago, 242 Ill. 2d 205, 227 (2011), "expressly overruled Doe's holding that section 2-202 provided a general willful and wanton exception to the other immunity provisions in the [Local Governmental and Governmental Employees Tort Immunity] Act" (745 ILCS 10/1-101 et seq. (West 2006)). 23 No. 1-14-0857

without tendering the documents but they absolutely do not want to

comply with that discovery order. So that's the reason why they delayed.

So I don't think that would be sanctionable, ***. Here they did it

within six days. So they made the decision fairly promptly. I just wish

they hadn't. I wish they just complied with the order because I think it's

the – it's analogous to the Sailor report[ 11] and the Supreme Court['s]

Consolidation [Coal] case where there is some type of an industrial

accident. They commissioned Sailor, the engineer at Consolidation

[Coal], to examine and they did and that was discoverable.

Likewise here, the superintendent of the School District, realizing –

him being a very competent individual and experienced and wise,

realizing how important it was directed Cates[,] to his person in charge of

special ed for the district[,] to find out why somebody with a 90 IQ was

mixed in with these other[] students and to conduct a complete

investigation. *** [T]he school district chief ordered his special ed chief

to conduct an investigation. This was at the direction of the

superintendent of schools to investigate this incident, and this is his

report, and I think they're discoverable.

11 The Sailor report was discussed in the Illinois Supreme Court case of Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103 (1982), which we discuss later in our Analysis section. 24 No. 1-14-0857

So as to sanctions, I think the reason that defendants were not in

compliance [was] because they had a good faith belief that they should

not have to tender them and that the Appellate Court would substantiate

that and, therefore, I'm going to deny the plaintiff's request for sanctions.

That leaves the petition for contempt. The defendant wants a friendly

contempt. The defendant wants a friendly contempt so the Appellate

Court can review this. Plaintiff is not agreeing to the friendly contempt

and says it's a delaying tactic. Nonetheless, the Appellate Court has held

that refusing to tender documents ordered by the Court and asking to be

held in contempt which has been described as friendly contempt is a

proper way to challenge a discovery order.

Although discovery orders are, as plaintiff points out, not generally

appealable, if a party is ordered to do something and refuses to do that

and is then held in friendly contempt, that allows them to appeal under

[a] Supreme Court rule as counsel said. I think it's [Rule] 304(b).

So I would be inclined to accept counsel's representation that he is not

going to comply and find the school district in contempt and enter a $500

fine for contempt and have that stayed pending appeal."

¶ 53 VIII. The Appeal

25 No. 1-14-0857

¶ 54 On March 18, 2014, the District and its attorney, Michael Kujawa, filed a

notice of appeal which stated that they were appealing both the trial court's

January 31, 2014, discovery order and the trial court's February 21, 2014,

contempt order. The three teachers did not file a notice of appeal, and they

were not named as appellants in the March 18, 2014, notice filed by the District

and Kujawa. Thus, the teachers are not parties to this appeal, and Kujawa and

the District are the sole appellants.

¶ 55 Defendants moved before the trial court to allow the clerk of the circuit

court to unseal the file and to prepare a limited record on appeal. However, on

April 15, 2014, the trial court issued an order which stated:

"Defendant's Motion to Prepare a Limited Record on Appeal is

denied. The Clerk of the Circuit Court is allowed to unseal the entire

record for the purpose of preparing the entire file for the Record on

Appeal and to allow the filing of the entire record on appeal."

¶ 56 On April 28, 2014, defendants filed a "Request for Preparation of Record

on Appeal," which "designated" 19 items as "necessary," including the two

Cates' affidavits, discussed above. Defendants' request contained a list of the 19

items, with the words "(not attached)" next to only the nineteenth item on the

list. If the other 18 items were originally attached to this list, they are no longer

attached in the appellate record.

26 No. 1-14-0857

¶ 57 On May 8, 2014, defendants filed a motion for leave to file a limited

record with the appellate court, which this court denied on May 21, 2014. On

July 18, 2014, defendants filed a 39-volume record; and on October 22, 2014,

they filed a supplemental record which included photocopies of the disputed

notes and a DVD of the video recordings.

¶ 58 The supplemental record states in several places that all 157 pages are

Cates' personal notes. First, in the sealed envelope, there is a title page

immediately preceding the photocopied notes which states: "Personal Notes of

Dr. Daniel Cates – 157 pages – Claimed Privileged." This statement is also

repeated on the outside of the sealed envelope. Second, the supplemental

record contains a "Master List," which is included twice, both in the bates-

stamped record and inside the sealed envelope. This list is entitled: "Master

List of Documents Constituting Supplement Record (Thursday, September 25,

2014)." This list also states that all 157 pages are Cates' notes:

"The personal notes of Dr. Daniel Cates, Director of Special

Education of District No. 211, found in Defendant's Amended Privilege

Log of Documents of approximately 157 pages tendered to the trial court

and reviewed in camera by the trial court, - and in issue in this appeal." 12

12 The dash is in the original. 27 No. 1-14-0857

However, this statement contradicts the amended privilege log, dated January

22, 2014, which stated: (1) that pages 145 through 156 are the "personal notes

of Timothy Little, Assistant Principal for District 211"; and (3) that page 157 is

an email from Superintendent Thornton to Cates.

¶ 59 Our in camera review reveals that, while the DVD is clear and crisp, the

photocopies are difficult to read, in part, because of the handwriting and, in

part, because of the photocopying process. Pages 1 through 149 and pages 154

through 156 appear to be what defendants indicate that they are, namely, dated

handwritten interview notes; pages 150 through 153 contain three student

schedules with notes handwritten on the front and what appears to be the back

of one of the schedules; and page 157 is an email from Superintendent Thornton

to Cates. The two videos on the DVD depict places in the school.

¶ 60 Although defendants' brief was filed on October 30, 2014, which was

almost six months after the appellate court had denied their motion for a limited

record, and which was after all 40 volumes of the record had been filed,

defendants' brief provided a table of contents to the record for only 11 of the 40

volumes. In addition, there were gaps in the table of contents even for the

volumes that were included. Ill. S. Ct. R. 342(a) (eff. Jan. 1, 2005) (an

appellant is required to provide in its brief "a complete table of contents" to "the

record on appeal"). The appendix to defendants' brief also failed to contain the

28 No. 1-14-0857

notice of appeal as specifically required by Illinois Supreme Court Rule 342(a)

(eff. Jan. 1, 2005) ("[t]he appellant's brief shall include" in an appendix "the

notice of appeal"), and the brief failed to specify the appropriate standard of

review, as expressly required by Illinois Supreme Court Rule 341(h)(3) (eff.

Feb. 6, 2013) ("[t]he appellant must include a concise statement of the

applicable standard of review for each issue, with citation to authority").

¶ 61 This appeal followed.

¶ 62 ANALYSIS

¶ 63 Defendants ask this court: (1) to reverse the trial court's discovery order

directing the District to produce the contested items; and (2) to vacate the

contempt order and fine. In response, plaintiff argues: (1) this court should not

consider defendant's claims because of, among other reasons, the appellate

record is insufficient; (2) in the alternative, if we do address the merits of the

appeal, we should affirm the trial court's discovery order; (3) and, whether we

affirm or reverse the discovery order, we should not vacate the contempt order

and its nominal $500 fine.

¶ 64 For the following reasons, we could reasonably conclude, first, that

defendants forfeited the discovery issue on appeal by failing to provide a

sufficient record. Specifically, defendants failed to include the transcript of the

29 No. 1-14-0857

hearing where the trial court ruled on the underlying discovery issue, which is

the sole basis of the contempt order.

¶ 65 Second, the affidavits of Dr. Cates and the reasons stated by the trial

court persuade us that the trial court's discovery order was proper. Lastly, we

vacate the friendly contempt order and fine.

¶ 66 I. Interlocutory Appeal

¶ 67 In the case at bar, as in the leading supreme court case of Norskog on

which defendants rely, "an interlocutory appeal was initiated in the appellate

court, pursuant to Supreme Court Rule 304(b)(5) [citation], after defendants

refused to comply with the trial court's discovery order[], were held in

contempt, and were sanctioned." Norskog, 197 Ill. 2d at 69. "Because

discovery orders are not final orders, they are not ordinarily appealable."

Norskog, 197 Ill. 2d at 69. "However, it is well settled that the correctness of a

discovery order may be tested through contempt proceedings," and that is what

happened both in the case at bar and in Norskog. Norskog, 197 Ill. 2d at 69

(citing Eskandani v. Phillips, 61 Ill. 2d 183, 194 (1975)). "When an individual

appeals contempt sanctions imposed for violating, or threatening to violate, a

pretrial discovery order," the discovery order itself then becomes subject to

review. Norskog, 197 Ill. 2d at 69.

30 No. 1-14-0857

¶ 68 "Review of the contempt finding necessarily requires [a] review of the

order upon which it is based." Norskog, 197 Ill. 2d at 69.

¶ 69 II. Burden of Proof

¶ 70 "The party who claims the privilege has the burden of showing the facts

which give rise to the privilege." Mlynarski v. Rush Presbyterian-St. Luke's

Medical Center, 213 Ill. App. 3d 427, 431 (1991). See also Consolidation Coal

Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 119 (1982) ("the burden of showing

facts which give rise to the privilege rests on the one who claims the

exemption"). Since defendants are claiming the privilege, they must show that

they satisfied their burden before the trial court to prove that Cates' notes and

affidavit are privileged.

¶ 71 In order to satisfy their burden, defendants submitted to the trial court:

(1) the two Cates' affidavits; and (2) the disputed notes and video recording for

an in camera review. No evidentiary hearing was held. As we observed above,

the Cates' affidavits provided no dates, other than to state that Cates was the

special education director in October 2005. In his January 16, 2014, affidavit,

Cates described only one meeting at which both Cates and counsel were

present, and Cates provided no date for the meeting.

¶ 72 III. Standard of Review

31 No. 1-14-0857

¶ 73 Plaintiff urges us to apply an abuse-of-discretion standard of review, and

defendants failed to discuss the appropriate standard of review. Illinois

Supreme Court Rule 341(h) (eff. Feb. 6, 2013) dictates what defendants, who

are appellants, are required to place in their briefs. The rule states in relevant

part: "The appellant must include a concise statement of the applicable

standard of review for each issue, with citation to authority, either in the

discussion of the issue in the argument or under a separate heading placed

before the discussion in the argument." Ill. S. Ct. R. 341(h)(3) (eff. Feb. 6,

2013). Defendants' brief failed to comply with this portion of the rule.

¶ 74 Plaintiff is correct that abuse of discretion is ordinarily the correct

standard of review for discovery matters, such as the issue in the instant appeal.

However, "[a]lthough a trial court's discovery order is ordinarily reviewed for a

manifest abuse of discretion [citation], the proper standard of review depends

on the question that was answered in the trial court." Norskog, 197 Ill. 2d at 70.

"If the facts are uncontroverted and the issue is the trial court's application of

the law to the facts, a court of review may determine the correctness of the

ruling independently of the trial court's judgment." Norskog, 197 Ill. 2d at 70-

71. In Norskog, the supreme court was "deciding whether disclosure of mental

health information [was] prohibited by a statutory discovery privilege and

whether any exception to the privilege applie[d]." Norskog, 197 Ill. 2d at 71.

32 No. 1-14-0857

The supreme court concluded that de novo review was appropriate in the case

before it, since these issues were questions purely of law, which normally

trigger a de novo standard of review. Norskog, 197 Ill. 2d at 71.

¶ 75 By contrast, in the case at bar, we are faced with a question concerning

the trial court's application of well-established law to the facts of this case.

Thus, an abuse-of-discretion standard of review is appropriate. Nonetheless,

our decision would be the same under either standard.

¶ 76 In addition, the Norskog court held that courts of review may sustain

contempt and discovery orders "on any grounds which are called for by the

record, regardless of the grounds relied on when the order was entered."

Norskog, 197 Ill. 2d at 69-70.

¶ 77 IV. Forfeiture

¶ 78 As a preliminary matter, plaintiff argues that this court should not

consider defendants' claims because, among other reasons, the appellate record

is insufficient.

¶ 79 For the following reasons, we could conclude that the underlying

discovery issue is forfeited for our consideration. First, we could conclude that

defendants forfeited the issue by failing to include the transcript of the January

31 hearing where the trial court decided this issue. The events at the January 31

hearing were the sole basis for the contempt order.

33 No. 1-14-0857

¶ 80 It is the appellant's burden to provide this court with a sufficient record to

grant the relief he or she requests on the claims that he or she raises. In re

Edgar C., 2014 IL App (1st) 141703, ¶ 82; Chicago Province of the Society of

Jesus v. Clark & Dickens, L.L.C., 383 Ill. App. 3d 435, 443 (2008). If the

appellant fails to do so, we will resolve all doubts arising from incompleteness

against the appellant. In re Edgar C., 2014 IL App (1st) 141703, ¶ 82; Courts

of Northbrook Condominium Ass'n v. Bhutani, 2014 IL App (1st) 130417, ¶ 42

(" 'As a general rule, it is the appellant's burden to provide a sufficiently

complete record *** and all doubts arising from the incompleteness *** will be

resolved against the appellant.' " (quoting People v. Salinas, 383 Ill. App. 3d

481, 489-90 (2008))); City of Chicago v. Jeron, 2014 IL App (1st) 131377, ¶ 9

("we will dismiss an appeal if the appellant fails to supply" an adequate record).

Without a sufficient record, "a reviewing court will presume that the order

entered by the trial court was in conformity with the law and had a sufficient

factual basis." Wackrow v. Niemi, 231 Ill. 2d 418, 428 n.4 (2008).

¶ 81 Although the trial court spoke generally at the February 21 hearing about the

prior discovery order, it may have gone into greater detail or depth at the

January 31 hearing when this issue was actually decided. Since discovery

orders are generally subject to an abuse of discretion standard, it is useful for a

34 No. 1-14-0857

reviewing court to know exactly what a trial court did and said with respect to

discovery before deciding whether the trial court abused its discretion.

¶ 82 In addition, plaintiff is correct that the photocopies of Cates' January 16

and February 14 affidavits, which appear in the appellate record, are neither file

stamped as received by the circuit court, nor attached to file-stamped

documents. Plaintiff questions on appeal whether these documents were

reviewed or considered by the trial court. As a result, it would have been useful

to view the transcripts for the January 31 and February 14 hearings to determine

if these documents were discussed and what, if anything, was said about them.

¶ 83 Thus, we could reasonably conclude that defendants forfeited the

discovery issue by failing to provide a sufficient record.

¶ 84 Second, defendants also failed: (1) to include a complete table of contents

to the appellate record (Ill. S. Ct. R. 342(a) (eff. Jan. 1, 2005) (an appellant is

required to provide in its brief "a complete table of contents" to "the record on

appeal")); (2) to include the notice of appeal in the appendix of the appellate

brief (Ill. S. Ct. R. 342(a) (eff. Jan. 1, 2005) ("[t]he appellant's brief shall

include" in an appendix "the notice of appeal")); and (3) to include a statement

of the applicable standard of review for each issue in their appellant's brief (Ill.

S. Ct. R. 341(h)(3) (eff. Feb. 6, 2013) ("[t]he appellant must include a concise

35 No. 1-14-0857

statement of the applicable standard of review for each issue, with citation to

authority")).

¶ 85 For all of these reasons, 13 we could conclude that defendants forfeited

consideration of the discovery issue on appeal. However, we have elected to

decide this case on its merits.

¶ 86 V. Supreme Court Rule 201

¶ 87 The affidavits of Dr. Cates and the reasons stated by the trial court

persuade us that the trial court's discovery order was proper.

¶ 88 Defendants argue that the disputed items are protected by both the

attorney-client privilege and the work-product doctrine. Supreme Court Rule

201 sets "full disclosure" as the general rule for discovery, with only a few

exceptions which are set forth in the rules. Ill. S. Ct. R. 201(b)(1) (eff. Jan. 1,

2013). Rule 201 states: "Except as provided in these rules, a party may obtain

by discovery full disclosure regarding any matter relevant to the subject matter

involved in the pending action *** including *** the identity and location of

13 Plaintiff also claims that defendants violated Supreme Court Rule 222(h) because defendants' privilege log failed to state "the exact privilege which is being claimed." Ill. S. Ct. R. 222(h) (eff. Jan. 1, 2011). However, the rule does not require the log itself to state the exact privilege but rather only that the "claim shall be made expressly and shall be supported by a description of *** the exact privilege which is being claimed." Ill. S. Ct. R. 222(h) (eff. Jan. 1, 2011). Defendants stated repeatedly, including in their motion for contempt, that these documents were protected by both the work-product doctrine and the attorney- client privilege. Thus, we do not find this claim persuasive. 36 No. 1-14-0857

persons having knowledge of relevant facts." Ill. S. Ct. R. 201(b)(1) (eff. Jan.

1, 2013). Dr. Cates' notes of his interviews with staff members and others

would thus qualify under this rule, unless protected by one of the exceptions

"provided in these rules." Ill. S. Ct. R. 201(b)(1) (eff. Jan. 1, 2013).

¶ 89 Defendants argue that the items fall under the exceptions provided in

Rule 201(b)(2) for "[p]rivilege and [w]ork [p]roduct." (Emphasis omitted.) Ill.

S. Ct. R. 201(b)(2) (eff. Jan. 1, 2013). Subsection (2) provides in relevant part:

"(2) Privilege and Work Product. All matters that are privileged

against disclosure on the trial, including privileged communications

between a party or his agent and the attorney for the party, are privileged

against disclosure through any discovery procedure. Material prepared

by or for a party in preparation for trial is subject to discovery only if it

does not contain or disclose the theories, mental impressions, or litigation

plans of the party's attorney." (Emphasis omitted.) Ill. S. Ct. R. 201(b)(2)

(eff. Jan. 1, 2013).

¶ 90 Thus, the rule defines attorney-client privilege as "privileged

communications between a party or his agent and the attorney for the party,"

and work product as "[m]aterial prepared by or for a party in preparation for

trial." Ill. S. Ct. R. 201(b)(2) (eff. Jan. 1, 2013); Waste Management, Inc. v.

International Surplus Lines Insurance Co., 144 Ill. 2d 178, 189-90, 196 (1991)

37 No. 1-14-0857

(defining the two distinct doctrines). While material subject to the attorney-

client privilege is protected against "disclosure through any discovery

procedure," work product is discoverable and is protected only if it reveals the

attorney's thinking. Ill. S. Ct. R. 201(b)(2) (eff. Jan. 1, 2013).

¶ 91 Although both protections "are provided for in our Rule 201(b)(2)," "they

are separate and distinct protections," and we must "address each separately."

Waste Management, 144 Ill. 2d at 189.

¶ 92 VI. Attorney-Client Privilege

¶ 93 A. Defined

¶ 94 As noted above, Rule 201 defines attorney-client privilege as "privileged

communications between a party or his agent and the attorney for the party."

Ill. S. Ct. R. 201(b)(2) (eff. Jan. 1, 2013); Mlynarski, 213 Ill. App. 3d at 430

("confidential communications made by a client to an attorney while seeking

legal advice"). Defendants quote our supreme court's definition in Waste

Management, and we quote it in full:

" 'The 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.' [Citation.]

However, the privilege is not without conditions, and we are mindful that

it is the privilege, not the duty to disclose, that is the exception.

38 No. 1-14-0857

[Citation.] Therefore, the privilege ought to be strictly confined within its

narrowest possible limits. Further, the attorney-client privilege is limited

solely to those communications which the claimant either expressly made

confidential or which he could reasonably believe under the

circumstances would be understood by the attorney as such. [Citations.]

Finally, we note that in Illinois, we adhere to a strong policy of

encouraging disclosure, with an eye toward ascertaining that truth which

is essential to the proper disposition of a lawsuit." Waste Management,

144 Ill. 2d at 190 (holding that the attorney-client privilege did not

apply).

¶ 95 In his January 16, 2014, affidavit, Cates stated that he provided only a

"summary" of his findings at the meeting which counsel attended. Cates did

not state that he created the handwritten notes for the purpose of turning them

over to counsel. Cates also did not state that he met with counsel prior to the

creation of any of these notes. The affidavit provides no date for the one

meeting described in the affidavit where Cates, after completing his fact-finding

interviews, "met with Dr. Thornton, Mr. Torres and Mr. Kujawa in the

superintendent's conference room to summarize what [he] had gathered and

learned." The privilege log indicates that Cates created his notes between

September 20, 2005, and September 17, 2007. Defendants are asking us to find

39 No. 1-14-0857

that an attorney's attendance at one undated meeting cloaks the director's entire

two-years' worth of fact-finding with the attorney-client privilege. The trial

court rejected this notion and so do we.

¶ 96 The trial court did carefully excerpt from disclosure the few pages which

appeared to relate to consultations with a law firm; and defense counsel

acknowledged that the trial court had, in fact done this in an exchange at the

one hearing for which we have a transcript in the record:

"THE COURT: Just a second. I think I took out anything I saw that

involved consultation with your firm. I think I told [your associate] that

last time.

THE COURT: So it's nothing involving a direct conversation

between you as the attorney and the client in what I ordered to be turned

Counsel then stated that his point was that "Dr. Cates began his work *** after

counsel had already been retained." But fact-finding after retention of counsel

is not the same thing as attorney-client communication. Ill. S. Ct. R. 201(b)(2)

(eff. Jan. 1, 2013) (defining the attorney-client privilege as covering "privileged

communications between a party or his agent and the attorney for the party").

Thus, none of the notes which the court ordered disclosed involved a

40 No. 1-14-0857

communication between an attorney and a client, and they are not subject to the

attorney-client privilege which, our supreme court has held, "ought to be strictly

confined within its narrowest possible limits." Waste Management, 144 Ill. 2d

at 190.

¶ 97 B. Controlling Cases

¶ 98 On appeal, defendants argue that "this case is controlled by the supreme

court Consolidation Coal and appellate court Mlynarski cases." Consolidation

Coal, 89 Ill. 2d at 112-21 (discussing attorney-client privilege); Mlynarski, 213

Ill. App. 3d at 430-32 (same). While both cases involved the attorney-client

privilege, Mlynarski held that the privilege applied to the facts before it.

Mlynarski, 213 Ill. App. 3d at 430-32.

¶ 99 In Mlynarski, a patient slipped and fell in a hospital on April 1, 1987, and

later died. Mlynarski, 213 Ill. App. 3d at 429. A coordinator in the hospital's

"Risk Management Department" contacted counsel, sending three memos.

Mlynarski, 213 Ill. App. 3d at 429. The first two memos were held to be

privileged but the trial court ordered a third memo produced. Mlynarski, 213 Ill.

App. 3d at 430. The third memo to counsel was sent on April 16, just two

weeks after the accident, and it included summaries of statements from persons

that the risk coordinator had interviewed in those two weeks. Mlynarski, 213 Ill.

App. 3d at 430.

41 No. 1-14-0857

¶ 100 The appellate court stated that "[t]he attorney-client privilege protects

confidential communications made by a client to an attorney," and that "the

question" before it was "which employees" of a corporation were entitled to this

privilege. Mlynarski, 213 Ill. App. 3d at 430. After concluding that the

coordinator was part of the hospital's "control group," the appellate court held

the memo privileged. Mlynarski, 213 Ill. App. 3d at 431-32.

¶ 101 By contrast, in the case at bar, the question is, first, whether the notes

were even communications made to an attorney. Cates does not state that his

handwritten notes were intended to be communications to an attorney or that

they were sent to the attorney prior to this discovery dispute. They were, as he

swore in his affidavit, part of the fact-finding mission that he was assigned by

his supervisor. At most, they could be work product, which we discuss below.

Thus, defendants failed to satisfy their burden of proving that the notes were

covered by an attorney-client communication. 14 Consolidation Coal, 89 Ill. 2d

at 119 (the party claiming the attorney-client privilege "must show certain 14 Defendants' briefs contradict themselves as to whether Cates made the notes, in part, for his own "personal reasons." In defendants' response to plaintiff's motion to compel, filed in the trial court on November 14, 2013, defendants stated that Cates made the notes "for both personal reasons and professional growth, and in anticipation of litigation." By contrast, in the reply brief filed in this court, defendants stated: "Plaintiff is mistaken [in suggesting that Cates had personal reasons for making the notes]. Dr. Cates had no reason to conduct his informal investigation into anticipated litigation for his own personal reasons." We know of no case that protects notes made for "personal reasons and professional growth."

42 No. 1-14-0857

threshold requirements" including that the document was a "communication

*** made to an attorney").

¶ 102 As in Mylnarski, Consolidation Coal stated that, with respect to the

attorney-client privilege, the question before it was solely "[t]he question of

who speaks for a corporation on a privileged basis." Consolidation Coal, 89 Ill.

2d at 112. Thus, as with Mylnarski, Consolidation Coal started off with the

assumption that the report at issue was, in fact, a communication made to an

attorney. Since, in the case at bar, defendants failed to satisfy their burden of

proving this "threshhold" requirement of a "communication *** made to an

attorney," neither Mylnaraki nor Consolidation Coal supports defendants' claim

of attorney-client privilege.

¶ 103 However, even if Cates had communicated all 144 or 157 pages of his

fact-finding notes during the one summary meeting which he attended with an

attorney, defendants have still failed to prove that Cates was part of the "control

group," whose communications are entitled to the attorney-client privilege.

Consolidation Coal, 89 Ill. 2d at 118-21 (discussing what is a control group);

Mlynarski, 213 Ill. App. 3d at 431-32 (same).

¶ 104 With corporations and other organization, courts must define which

employees qualify as the "client," such that communications between an

attorney and those employees will qualify for the "attorney-client" privilege.

43 No. 1-14-0857

Mlynarski, 213 Ill. App. 3d at 430. See also Consolidation Coal, 89 Ill. 2d at

112. In Illinois, our supreme court has adopted the "control-group test" to

answer that question. Consolidation Coal, 89 Ill. 2d at 118-19. See also

Mlynarski, 213 Ill. App. 3d at 431-32.

¶ 105 Two tiers of employees qualify as the control group: (1) "top

management who have the ability to make a final decision"; and (2) employees

who advise top management in a particular area such that a decision would not

normally be made without their "advice or opinion," and whose "opinion" forms

the basis of any final decision made by those with actual authority.

Consolidation Coal, 89 Ill. 2d at 120; Mlynarski, 213 Ill. App. 3d at 431

(discussing the "two tiers"). With respect to the second tier, our supreme court

drew a distinction between "opinion" and "information." Consolidation Coal,

89 Ill. 2d at 120; Mlynarski, 213 Ill. App. 3d at 431 ("opinions and advice"

distinguishes the control group) Thus, while employees whose "opinion" forms

the basis of a decision are part of the control group, "individuals upon whom

[top management] may rely for supplying information are not members of the

control group." Consolidation Coal, 89 Ill. 2d at 120.

¶ 106 In Mlynarski, this court held that defendant had satisfied its burden of

proving that an employee was a member of the control group, where defendant

submitted an affidavit from the employee's supervisor which stated that " '[a]ll

44 No. 1-14-0857

settlement decisions made with respect to litigated and non-litigated claims ***

are made jointly' " with this employee; that this employee is " 'consulted from

time to time' " by counsel " 'to determine what legal action' " to pursue; and that

his " 'advice and opinions' " form " 'part of the basis for any decision to settle or

litigate the matter.' " Mlynarski, 213 Ill. App. 3d at 431.

¶ 107 By contrast, in the case at bar, Cates submitted an affidavit in which he

stated (1) that he attended one meeting which an attorney also attended; and (2)

that he was assigned a fact-finding mission by his supervisor. Thus, defendants

have failed to satisfy their burden of showing that Cates was a member of the

control group.

¶ 108 With respect to the video recordings, Cates' affidavit stated only:

"11. In addition, I created a video file of the pathway that I believed

the student might have taken in order to get to the location where the

alleged events were reported to have taken place. This video was shared

one time only during the summary meeting held with Dr. Thornton, Mr.

Torres and Mr. Kujawa. It was never shared with anyone at any other

time."

¶ 109 Cates did not state that he created this video file at the direction of

counsel or for the purpose of communicating it to counsel. Cates stated simply

45 No. 1-14-0857

that he "created" it and later "shared" it.15 Cates provided no date in his affidavit

for the recording's creation or for the meeting at which it was shared or for the

date counsel was retained. There is also no date for the recording: (1) in the

privilege log; (2) on defendants' "Master List" for the supplemental record; or

(3) in the audio or video portion of the recording itself. The DVD contains two

files, with the first one listed on the computer file as "10/11/2005 8:38 a.m.

Movie Clip," and the second one listed as "10/11/2005 8:51 a.m. Movie Clip."

However, there is no indication who input these dates on the copy that we have.

Thus, defendants have failed to satisfy their burden to show that the video was

an attorney-client communication.

¶ 110 In sum, defendants failed to satisfy their burden of showing that these

items qualified as a communication to an attorney or that Cates qualified as part

of the control group. Since defendants cannot avail themselves of the attorney-

client privilege, we discuss the work-product doctrine next. 15 Although defendants, in their response to plaintiff's motion to compel, asserted that "the video was shown to defense counsel Michael Kujawa within minutes of it being taken," defendants did not support this assertion with an affidavit or other citation to the record. Similarly in their reply brief to this court, defendants asserted that the video was "done at defense counsel's direction," but without providing a citation to the record. Paoletti v. Industrial Comm'n, 279 Ill. App. 3d 988, 999 (1996) ("A brief, however, is not evidence ***."); Ferguson v. White Oak Coal Co., 202 Ill. App. 160, 166 (1916) (refusing to consider a fact that was merely "stated in defendant's brief"). See also City of Des Plaines v. Metropolitan Alliance of Police, Chapter No. 240, 2015 IL App (1st) 140957, ¶ 34 (a party's brief must support its allegations about evidence with citations to the record) 46 No. 1-14-0857

¶ 111 VII. Work-Product Doctrine

¶ 112 Second, defendants argue that the disputed items are also protected by the

work-product doctrine. As Rule 201 states, work product is "[m]aterial

prepared by or for a party in preparation for trial," and it "is subject to discovery

only if it does not contain or disclose the theories, mental impressions, or

litigation plans of the party's attorney." Ill. S. Ct. R. 201(b)(2) (eff. Jan. 1,

2013); Waste Management, 144 Ill. 2d at 196.

¶ 113 While the work-product doctrine applies to a "broader" array of materials

than the attorney-client privilege, it is less of a shield than the attorney-client

privilege. Waste Management, 144 Ill. 2d at 196. "[O]rdinary work product" is

"freely discoverable" (Waste Management, 144 Ill. 2d at 196), and it is defined

as "any relevant material generated in preparation for trial which does not

disclose 'conceptual data' " (Waste Management, 144 Ill. 2d at 196 (quoting

Monier v. Chamberlain, 35 Ill. 2d 351, 360 (1966))). By contrast, "[o]pinion or

'core' work product" is defined as "materials generated in preparation for

litigation which reveal the mental impressions, opinions, or trial strategy of an

attorney." Waste Management, 144 Ill. 2d at 196. Even this opinion or core

work product is discoverable "upon a showing of impossibility of securing

similar information from other sources." Waste Management, 144 Ill. 2d at 196

(holding that the work-product doctrine did not protect the documents at issue).

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¶ 114 Here, we have memos made by a party's employee concerning possible

witnesses. With respect to memos made by counsel, our supreme court has

distinguished between: memos made by counsel of his or her impressions of a

prospective witness, which are protected; and verbatim statements of the

witness, which are not. Consolidation Coal, 89 Ill. 2d at 109 ("memoranda

made by counsel of his impression of a prospective witness" are "distinguished"

from "verbatim statements of such witness") (citing Monier, 35 Ill. 2d at 360).

In Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 109 (1982), our

supreme court considered whether counsel's notes of employees and witnesses'

oral statements, which were not verbatim and not reviewed or corrected by

these individuals, were protected under the work-product doctrine.

Consolidation Coal, 89 Ill. 2d at 109. The court held that an attorney's notes

"regarding oral statements of witnesses, whether in the form of attorney's

mental impressions or memoranda, necessarily reveal in varying degrees the

attorney's mental processes in evaluating the communications." Consolidation

Coal, 89 Ill. 2d at 109. By contrast, in the case at bar, the notes at issue were

not done by the attorney and thus do not "reveal *** the attorney's mental

processes in evaluating [his] communications" with the witnesses.

Consolidation Coal, 89 Ill. 2d at 109.

48 No. 1-14-0857

¶ 115 In the case at bar, no one disputes that Cates was engaged in a fact-

finding mission assigned by his work supervisor. In this way, his legal pads are

similar to the notebooks which the supreme court held in Consolidation Coal

were not work product. Consolidation Coal, 89 Ill. 2d at 112. In Consolidation

Coal, our supreme court considered not only interview notes made by attorneys

(which we discussed above), but also the notebook of an employee who was

assigned a fact-finding mission about the accident at issue. Consolidation Coal,

89 Ill. 2d at 111, 121. Holding that the notebook was not attorney work

product, our supreme court explained:

"It does not reflect or disclose the theories, mental impressions or

litigation plans of [defendant's] attorneys. Nor is it the product of the

attorneys' mental processes. Sailors[, the employee,] never

communicated with the legal department prior to preparing this material,

nor was he advised by his superior, who had requested Sailors' help, as to

what the theories or plans of the attorneys were relative to this litigation.

He was simply asked to analyze pieces of the machinery and render an

opinion as to what had occurred. When his report was transferred to the

legal department some six months to a year after it had been made, it did

not, as [defendant] argues, thereby become part of the attorneys' thought

processes." Consolidation Coal, 89 Ill. 2d at 111-12.

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¶ 116 As the trial judge observed in the case at bar, Cates' notes and video

are "analogous to the Sailor report." To the extent that they reflected the

"mental impressions" of the attorneys, he exempted them from production. See

Consolidation Coal, 89 Ill. 2d at 111-12. Cates did not state in his affidavit that

he "communicated with the legal department prior to preparing this material" or

that he was "advised by his superior *** as to what the theories or plans of the

attorneys were relative to this litigation." Consolidation Coal, 89 Ill. 2d at 112.

Cates was "simply asked to analyze [the] pieces" and "render an opinion as to

what had occurred." Consolidation Coal, 89 Ill. 2d at 112. When he

summarized his results to his supervisor, at a meeting which the attorney also

attended, his notes and video did not "thereby become part of the attorneys'

thought processes." Consolidation Coal, 89 Ill. 2d at 112. Pursuant to the

holding of Consolidation Coal, these items are "therefore not entitled to

protection under the work-product doctrine." Consolidation Coal, 89 Ill. 2d at

112.

¶ 117 Neither Consolidation Coal nor Mlynarski, which defendants maintain

are controlling in this appeal, helps defendants, and we are thus not persuaded

by defendants' work-product argument.

¶ 118 With respect to the video, plaintiffs also argue that producing it would be

like "ordering the Chicago Bears to produce their 'Playbook' of all plays" to the

50 No. 1-14-0857

Green Bay Packers. Actually, it is more like allowing the Packers to view the

playing field. Since plaintiff has not viewed the video, she is not in a position

to argue that it is impossible for her to now observe at the school what was

depicted in the video, and impossibility is an exception to the work-product

doctrine. Consolidation Coal, 89 Ill. 2d at 111 (recognizing an "exception" to

the work-product doctrine when it is not possible to secure similar information

from other sources). Since our decision may be further appealed, we do not

want to discuss the content of the video, except to say that it shows movable

items that may or may not still exist. Thus, with respect to the video, the

impossibility exception is yet a further reason not to apply the work-product

doctrine.

¶ 119 VIII. The Civil Contempt Finding

¶ 120 Lastly, we must consider the civil contempt finding, which plaintiff asks

us not to vacate and which defendants ask us to vacate.

¶ 121 Whether a contempt finding should be vacated is a question to be

determined on the individual facts of the particular appeal. Consolidation Coal,

89 Ill. 2d at 122. In Consolidation Coal, for example, the supreme court ruled

that, "[s]ince" some of the notes and memos were not discoverable and the case

involved "issues of first impression," the court would set aside the contempt

finding ordered by the trial court. Consolidation Coal, 89 Ill. 2d at 122 ("the

51 No. 1-14-0857

circuit court's order imposing a fine on [defendant's] attorney for contempt of

court will be set aside"). See also Sarver v. Barrett Ace Hardware, Inc., 63 Ill.

2d 454, 462 (1976) ("[s]ince the issue involved in this case is one of first

impression in this State, that part of the order of the circuit court imposing a

fine on the attorney for the plaintiff is vacated").

¶ 122 By contrast, in the case at bar, there were no issues of first impression or

close legal questions to be resolved, and we are affirming the trial court. In

addition, defendants failed: (1) to include a complete table of contents to the

appellate record (Ill. S. Ct. R. 342(a) (eff. Jan. 1, 2005) (an appellant is required

to provide in its brief "a complete table of contents" to "the record on appeal"));

(2) to include the notice of appeal in the appendix of the appellate brief (Ill. S.

Ct. R. 342(a) (eff. Jan. 1, 2005) ("[t]he appellant's brief shall include" in an

appendix "the notice of appeal")); and (3) to include a statement of the

applicable standard of review for each issue in their appellant's brief (Ill. S. Ct.

R. 341(h)(3) (eff. Feb. 6, 2013) ("[t]he appellant must include a concise

statement of the applicable standard of review for each issue, with citation to

¶ 123 Our supreme court has admonished: "The rules of this court are not

suggestions; rather, they have the force of law, and the presumption must be

that they will be obeyed and enforced as written." People v. Campbell, 224 Ill.

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2d 80, 87 (2006) (citing Bright v. Dicke, 166 Ill. 2d 204, 210 (1995)). Since

supreme court rules are "not mere suggestions" and "are mandatory," "this court

possesses the discretion to impose appropriate sanctions for violations." Pickus

Construction & Equipment v. American Overhead Door, 326 Ill. App. 3d 518,

520 (2001). In addition, our supreme court has held that courts of review may

sustain contempt and discovery orders "on any grounds which are called for by

the record, regardless of the grounds relied on when the order was entered."

¶ 124 However, when an attorney's noncompliance with a discovery order is

based on a good faith effort to secure an interpretation of an issue to serve his or

her client and the court, a civil contempt finding should not stand. In weighing

the lawyer's disregard of our rules against the serious consequences of

contempt, we exercise our discretion to vacate the contempt finding and the

$500 fine.

¶ 125 CONCLUSION

¶ 126 For the foregoing reasons, we affirm the trial court. Defendants have failed

to satisfy their burden to show that either the attorney-client privilege or the

work-product doctrine applies. The two cases, which defendants argue are

controlling in this appeal, support the trial court's ruling. In addition, we vacate

the contempt finding and the $500 fine imposed by the trial court.

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¶ 127 Affirmed; civil contempt finding and the $500 fine vacated; and the case

remanded for further proceedings consistent with this opinion.