dissenting:
I respectfully dissent. In my opinion, the majority’s decision effectively dissolves the attorney-client privilege in every case where the statute of limitations is pleaded as a defense and the client relies on the discovery rule to overcome the limitations period. Because plaintiff never placed communications with her prior attorney at issue so as to waive her attorney-client privilege, I do not believe that defendant should be entitled to the contested documents.
The facts are clear that on March 23, 1999, defendant performed on plaintiff a laparoscopy of an ovarian cyst. On May 15, 2001, plaintiff filed a complaint against defendant alleging that she first became aware of defendant’s negligence on June 28, 1999. Defendant raised the statute of limitations as a defense, arguing that plaintiff’s cause of action became time-barred after March 23, 2001. Specifically, defendant claimed that plaintiff knew of his allegedly negligent conduct before June 28, 1999, because her husband met with a malpractice attorney, Carden, four days after plaintiff’s surgery. Defendant moved for an in camera inspection of the documents in Carden’s client file and requested that he be provided with the relevant documents. Determining that plaintiff placed the communications with her former attorney at issue by invoking the discovery rule to defeat the limitations period, the court ordered plaintiff to turn over the relevant documents from Carden’s file.
The majority now affirms the trial court’s decision by concluding that plaintiff “voluntarily injected into the case the factual and legal issues of when she learned of her injury.” 353 Ill. App. 3d at 306. Because there are no Illinois cases addressing this issue, the majority relies on a federal case, Pyramid Controls, Inc. v. Siemens Industrial Automations, Inc., 176 F.R.D. 269 (N.D. Ill. 1997), which also involved a statute of limitations defense. There, the plaintiff alleged that the defendant had violated the Franchise Disclosure Act of 1987 (815 ILCS 705/27 (West 1996)) by terminating its franchise in 1995. Pyramid Controls, 176 F.R.D. at 271. In an attempt to defeat the one-year time limitation defense, the plaintiff alleged that it was not until it met with its current legal counsel in 1997 that it discovered its possible claim against the defendant. Pyramid Controls, 176 F.R.D. at 274. In its answers to interrogatories, the plaintiff admitted that, after being notified of the alleged termination, it was represented by former counsel when it sold its assets to another company in 1995. Pyramid Controls, 176 F.R.D. at 271. The defendant requested that the plaintiff produce records of the plaintiff’s communications with its former counsel, and the plaintiff objected based on the attorney-client privilege. Pyramid Controls, 176 F.R.D. at 271. In order to determine whether the plaintiff had placed these communications at issue, the court applied the at-issue waiver test articulated in Hearn v. Rhay, 68 F.R.D. 574, 580 (E.D. Wash. 1975).
Under Hearn, a client waives the attorney-client privilege if (1) assertion of the privilege is the result of some affirmative act by the asserting party, such as filing suit; (2) through the affirmative act, the asserting party has placed the protected information at issue by making it relevant to the case; and (3) application of the privilege would deny the opposing party access to information vital to its defense. Pyramid Controls, 176 F.R.D. at 272, citing Hearn, 68 F.R.D. at 581. Based on Hearn’s three-pronged test, the court concluded that the plaintiff, by attempting to defeat the statute of limitations, had put at issue the communications with its former attorneys concerning the alleged termination. Pyramid Controls, 176 F.R.D. at 274-75. According to the court, “invasion of the attorney-client privilege [was] necessary because the specific content of those communications [was] essential to resolving the statute of limitations issue.” Pyramid Controls, 176 F.R.D. at 274.
However, commentators, academics, and courts have strongly criticized the standard set forth in Hearn. Public Service Co. of New Mexico v. Lyons, 129 N.M. 487, 493-94, 10 P.3d 166,171-72 (App. 2000); Developments in the Law-Privileged Communications, 98 Harv. L. Rev. 1450, 1640-42 (1985). In particular, it is criticized for focusing on the opposing party’s need for the privileged information despite the Supreme Court’s emphasis on the role of certainty in encouraging the full and frank communication between attorneys and their clients. 98 Harv. L. Rev. at 1641. Further, the Hearn approach does not target the type of unfairness that is distinguishable from the unavoidable unfairness generated by every assertion of privilege, and its application cannot be limited. 98 Harv. L. Rev. at 1641-42. According to the Third Circuit, cases like Hearn that have allowed the opposing party discovery of confidential attorney-client communications in order to test the Ghent’s contentions are of dubious validity. Rhone-Poulenc Rorer Inc. v. Home Indemnity Co., 32 F.3d 851, 864 (3d Cir. 1994). The Rhone court explained:
“While the opinions dress up their analysis with a checklist of factors, they appear to rest on a conclusion that the information sought is relevant and should in fairness be disclosed. Relevance is not the standard for determining whether or not evidence should be protected from disclosure as privileged, and that remains the case even if one might conclude the facts to be disclosed are vital, highly probative, directly relevant or even go to the heart of an issue.” Rhone-Poulenc Rorer, 32 F.3d at 864.
Because this is a case of first impression, and because state and federal courts are anything but uniform in identifying what constitutes an “at-issue waiver” in a given case, I respectfully submit that the Hearn standard employed in Pyramid Controls should not be followed. Otherwise, in virtually every case where the statute of limitations is pleaded as a defense and the client relies on the discovery rule to overcome the limitations period, the opposing party may discover confidential communications between the client and the attorney merely to test the client’s credibility. See Darius v. City of Boston, 433 Mass. 274, 282, 741 N.E.2d 52, 58 (2001) (holding that, where a defendant asserts a statute of limitations defense and the plaintiff relies on the discovery rule to overcome that defense, the defendant may not, based solely on the plaintiff’s invocation of the discovery rule, automatically probe the plaintiff’s attorney-client relationship simply to determine whether the plaintiff may have revealed something to his or her attorneys that might be helpful to the defendant’s case). To allow such discovery would effectively swallow the privilege, rendering it useless even though the privilege holder never directly put the privileged information at issue in the case.
Based on the criticism of Hearn, I propose an approach to at-issue waiver recently adopted by several courts. See Lyons, 129 N.M. at 492, 10 P.3d at 171 (several courts have recently concluded that a litigant waives the attorney-client privilege if, and only if, the litigant directly puts the attorney’s advice at issue in the litigation). These jurisdictions limit the extent of the at-issue waiver doctrine to circumstances in which the “privilege-holder injects the privileged material itself into the case.” Aranson v. Schroeder, 140 N.H. 359, 370, 671 A.2d 1023, 1030 (1995), quoting R. Marcus, The Perils of Privilege: Waiver and the Litigator, 84 Mich. L. Rev. 1605, 1633 (1986). In other words, when the party asserting the privilege has injected the privileged material into the case, such that the information is actually required for resolution of the issue, the holder of the privilege must either waive the attorney-client privilege or be prevented from using the privileged information to establish the elements of the case. Aranson, 140 N.H. at 370, 671 A.2d at 1030. This approach requires offensive or direct use of privileged materials before the party will be deemed to have waived its attorney-client privilege. Lyons, 129 N.H. at 494, 10 P.3d at 173.
The case at bar is not a situation where the plaintiff has taken the affirmative step of placing the advice of her former attorney at issue in order to assert a claim or defense. Rather, it is defendant who seeks to discover plaintiffs husband’s communications with Carden in order to disprove plaintiffs claim. Because plaintiff, as privilege holder, is not attempting to prove her claim (or defense) by relying upon these privileged communications in order to prevail, she has not waived any attorney-client privilege with Carden. Thus, in accordance with de novo review, I would reverse the trial court’s order to turn over any documents to defendant.