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The Law Office of Daniel E Goodman’s Associate Attorney Gary W. Klages successfully argues before the Illinois Supreme Court in case involving the Critical Self Analysis Privelege.

Published on December 1st, 2017

On January 15th, 2015, Law Office of Daniel E Goodman, LLC’s Associate attorney Gary W. Klages argued before the Illinois Supreme Court in Harris v. One Hope United, and on March 19th, 2015 the Illinois Supreme Court filed its decision in the case.

The case centers around the death of a child. On January 20th, 2015, The Chicago Law Bulletin posted the following summary of the oral arguments in the case:

The Cook County public guardian wants a nonprofit to turn over its case study of an infant who died after her family received counseling services from the agency. But the agency is asking the Illinois Supreme Court to exempt the report from discovery and, in the process, create a rule that allows similar accounts to remain behind a veil. Both sides made their cases to the state’s top justices in oral arguments last week. In 2009, the Department of Children and Family Services received a complaint alleging the child, Marshana Philpot, was being neglected by her mother. The child was hospitalized for malnourishment in April 2010 after the department assigned One Hope United, a family-support agency, to monitor her and her family. Upon release, the child was sent to live with her aunt and thrived under her care. She was eventually returned to her mother.

In July 2010, the infant drowned after her mother left her alone while bathing her.

The public guardian filed a wrongful-death suit against One Hope United in Cook County Circuit Court, alleging the child should not have been given back to her mother and that the agency failed to protect her from abuse. Invoking the “self-critical analysis” privilege, the agency acknowledged the existence of a report on the child’s case during discovery but declined to turn it over. The privilege has been allowed in other states, but Illinois courts have consistently declined to recognize it. Circuit Judge Eileen M. Brewer ruled the report should be disclosed but acknowledged that One Hope United’s effort to keep it concealed was in good faith. She allowed One Hope United to keep the report hidden while it sought an appeal, holding the agency in friendly contempt and fining it $1 per day. Justice Mathias W. Delort authored a unanimous 1st District Appellate Court opinion affirming the trial court’s judgment to disclose the report. The appellate panel also vacated the contempt order. The panel cited two previous appellate cases in which both courts declined to recognize the privilege. And without the privilege, the report should be disclosed “Absent the privilege, there is no dispute that the priority review report is discoverable, as it may contain information admissible at trial or lead to such information,” Delort wrote. On Thursday at the Supreme Court, Esther Joy Schwartz, a shareholder at Stellato & Schwartz Ltd. who represents One Hope United in the case, cited the court’s Rule of Evidence No. 501, arguing the high court has the power to recognize the privilege. The rule states that legal 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 attorney who represents Cook County Public Guardian, Robert F. Harris, Gary W. Klages, argued that Schwartz is asking for something that has never existed under Illinois law. Klages, of the Law Office of Daniel E Goodman LLC, contends that Rule 501 provides no basis for the privilege because it allows the court to only interpret common law privileges rather than create them. He argued that past Supreme Court decisions make it clear the legislature is generally the best branch of government for privilege creation. “What this case really is about is full disclosure regarding the death of an 8-month-old girl, and to establish a privilege like this would prevent the plaintiff’s bar from determining and finding relevant evidence so that a full investigation as to the death can be made,” he said during Thursday’s arguments.

Klages pointed to the Child Death Review Team Act’s mandate for a full investigation in the death of children as the basis for the court to order the report be turned over.

But Schwartz said the public guardian’s office knows all the case facts and investigation procedures even without the report. What the other side is really looking for, she contends, is the “smoking gun.” “They are hoping that there is something in these reports that says, ‘We made a mistake. We should have done it better. We’re at fault,’” she said.

Justice Lloyd Karmeier raised the point that the Supreme Court traditionally looks at a new evidentiary privilege as something that can only be created by the legislature. Schwartz said One Hope United doesn’t have the resources, strength or lobby to advocate such a change. “I’m suggesting there might be a need for a complete legislative look at these types of caseworkers or these types of agencies. But we don’t have the ability to do that, and this court can give these agencies this privilege at common law,” she said.

On March 19th, 2015, the Illinois Supreme Court issued its opinion and affirmed the circuit court’s ruling that the report was discoverable. The full opinion can be read here.

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