with me today and represents patricia courtney and we both will argue jointly on behalf of all of the defendants may please the court counsel our position is that the trial court correctly ordered plaintiff to produce her expert neurologist records regarding his testing of the plaintiff that the plaintiff did not meet her burden of proving that the material is privileged and i think the logical way to address this is to break the preston materials down into two sections one is the e m t testing and the other is the conclusions and even as a consultant even if the court were to permit that the test results themselves should be produced these are relevant material evidence three facts regarding an essential element of plaintiff's medical malpracti claim that the damages that she claimed were caused by the alleged malpractise actually in this particular case the facts being withheld are not just relevant sensually is plaintiff's entire damage claim she alleges permanent nerve injury as a result of the alleged malpractise plaintive criticizes the defense for trying to explain and illustrate with scholarly material exactly what data is at the heart of this discovery dispute it seems ironic quite frankly because it is plaintiff the party who is asserting privilege who should have provided this explanation to the court reveals whether nerve or a collection of nerves has any more net abnormalities electron electric stickers are fixed to the patient's skin and a neurologist or a technician may insert needle electrodes the test measures electrical currents at the anatomical site where the mock when the muscle is at rest and also when the muscle is contracted to learn about the health of the muscle and the factual material not material that is subject to the mental processes of the consultant and again the material that is generated by these tests is numerical data sometimes it's in the form of a graph or a table and then once that data is compiled or is released then the experts in this case a neurologist dr preston can interpret the numbers and say what they mean this court's precedent tells us that e m g test results must be produced because the information relevant immaterial avid entry data is because of that is not work product it does not disclose the experts mental processes so as is just as garmin requests are asking even if a court were to accept the promise that dr preston could be pulled back into the and to use the term of the appellate court this is concrete information this is the conclusion the appellate court should have reached based on controlling president of this court and appellate president as well the co decision addressed the question of work product versus concrete factual material that always a subject to disclosure in the truth seeking process the near court back in one thousand nine hundred and sixty six rejected the broad federal definition of work product and what this called court called the huge jungle of conflicting district court decisions decipher the good cause exception to the expansive federal definition of work product it might shed some but not to the point that it's transformed from a factual data vet is discoverable into protected work product and they had exact issue was addressed in the shields case of the st district  which involved a surveillance video and the the defendant resisted producing that video on the basis that it was prepared by a consultant it was not there was no question about redoes nation or anything of that nature prepared by a consultant but the core reason that it's really not that the that it's still essentially is factual information that like the information we're talking about in this case goes to the question of the plane of stam ijaz and the fact that there are some subtleties that involved in their case the consultant was the viagra for the way the victim you know the videographer the angles and so forth of the video that they did not transform the video itself into work product any more than taking a statement is the work product of someone who takes the statement in the us the question the verb statement of a witness it still is factual evidence or material and not work product and the appellate court did not account for the nature of the testing and reversing the trial court's discovery or the court said that the pressing records are not before us so we can't conclude they have surely concrete material was contained in the file maybe there was maybe there wasn't and maybe there were thought processes involved but i i have to i have to say that that was an error because the plaintiff you have the burden of proof being that there was an applicable privilege as proponent of the privilege and the plaintiff had the burden to present to the appellate court a basis for concluding that the trial court had erred this was not this was not a presumption that it should have gone against the defense of the without having a basis and found that the casa decision of the th district was more applicable but in castro which was in the best us wrongful death case the th district didn't address the issue  face the appellate court and now this court here is the information work product or is it concrete factual material the party seeking the material in the caustic case did not challenge that it was a work product the  this court that playing a cited in that the appellate court relied and didn't involve read designation it involved abandoning an expert well that's that's a far cry from saying that i'm going to read designate this expert and now keep his opinions and and even factual of entry material from the other side that didn't happen and taylor was a completely different issue and taylor it was that he whether the expert in taylor that's that's kind of a fundamental problem here i to the extent that the plaintiff has described dr preston as conducting the study and generating test results all we know that just because we know what an e m g seventy as we know what th but there's no there's no transcript because there was no court reporter at the initial c m c when the when the issue came up and then the plainest original motion to read designate and then plaintiff's motion reasoning and i don't believe that the federal authorities that plaintiff sites are of any of any help to this court on this issue looking looking at federal authorities and interpret ing the illinois  this court's rules in that judge easterbrook had no problem with the plaintiffs the f c c calling the defend against expert at trial without any notice to the plaintiff rather to the to the defendant and because it was a matter of whether it was confidential or not but that they have type of calling of an expert without notice to the other side is not how we are required we as litigants that think this is the case from what we do know of the record two months after plaintiff disclosed dr preston two months after the testing according to the ip disclosure without any explanation plaintiff sent an e mail is what you're going to try to do and in that motion plaintiff said that there was an inadvertent disclosure without giving any explanation or details they had motion was denied and the court ordered plaintiff to produce dr preston's results and his file and then there was a motion to reconsider and in the motion to reconsider plaintiff retracted the inadvertent assertion in the verdon disclosure a certain inconsistency here and i i think that what they have suggests in the record is is a signal that there was really no reason for the switch other than the receipt of bad news from dr preston the word this court uses for that type of discovery conduct is gamesmanship and my understanding is that the court does not approve of it when it comes to esper expert witness discovery and illinois the plaintiff says many times in the plaintiff's response defendant should have just asked for a tooth rule to fifteen i mean but i can tell the court why we didn't as discovery progressed into the expert phase plain of disclosed that she would have dr preston conduct the testing on this one of the two focal points of plaintiff's case  so given that plaintiffs had disclosed that dr presses going to do a g study we would then just take the results supply those results to our experts and our expert with then we discussed that with them and opine about the plane's condition based on those results as of june one two thousand and seventeen until we had the opportunity to review those results there really was no reason why we an hour here and we're here in his two thousand and twenty so if we return to the circuit court now and request an examination if we were required to do that that would tell us nothing about majority of federal districts on the issue of whether a party can read designate a retained expert into a nine testifying consultant whose work product is privilege x in exceptional circumstances the answer is overwhelmingly yes therefore this court should affirm the appellate court for the following two reasons st the appellate court correctly applied the majority federal precedent to interpret our own supreme court corresponding consultant work product privilege found in illinois supreme court ruled to a one b three and nd defendant failed to meet their burden to establish exceptional circumstances that would entitle them to doctor precedence records and your honors at the outset there was a discrepancy in the brief between the parties whether do novo review applies we argue that you know full review does apply as this court has held in harris v one whole united in where the applicability of the discovery privilege is viewed as well as any proceedings in conjunction with that ruling which would be the contempt that that took place below this matter also presents an issue of st impression in illinois which also grants to novo review for this subject matter now defendants would have this court force production of a nonplus to find consultant records not only do they seek the e m t report which does contain dr preston's mental impressions and opinions they s any records regarding such study which would include the communications between plaintiff's office and dr preston as well as any records he may have reviewed now under illinois rule to a one b three these records of a non testifying consultant are privileged absent the exceptional circumstances test now to give the history the committee notes for rule two a one b three clearly acknowledge that discovery of a non testifying consultant is only to be had an exceptional and extraordinary cases this case does not represent such a case the defendants have failed to show that they were prejudiced in any way by the withdrawal of d testifying expert now under rule two hundred and thirteen and three plaintiff originally disclosed dr preston as someone who would be testifying however in the disclosure itself it was more of a broad disclosure stating that testing was to be done on the plaintiffs and that findings and opinions would be supplemented after the test had been done at the time of the disclosure of the test had not been completed so in the prompt withdraw all of dr preston as a as a testifying expert into a consulting expert the plaintiff never disclosed his opinions never disclosed what his testimony would be and never disclosed the test results and opinions that were found in his report therefore there is no detrimental reliance by the defendants on this information as this court has held in taylor v coley a party can abandon and retained expert witness  produce the best evidence possible to prove her case and the plaintiff as has been held for thirty years in the federal district courts a plaintiff does have the ability to change their mind about who they would like to possible under the discovery rules now rule two hundred and one b three was crafted based on the corresponding federal rule which is twenty six before be formally now to rule twenty six before d d the wording of both rules distinguishes between a testifying expert one who will provide testimony at trial in a consulting expert who is not to be called a trial both rules distinct make this distinction and say that there is a consultant work product privilege that protects any discovery of this of this particular expert up such as their identity their opinions and their work product which samples if you well and we asked in our brief that those be stricken as they were never part of the record and never reviewed or relied upon by the appellate court or the trial court they also would have this court assume that these reports are similar to what the report that dr preston produce which is simply not true the report the m g is it is a two part test it's an e m t to test the muscle function as well as the nerve conduction to see if there's any damage now these tests are not completely objective data as defendant would have you believe the numbers that are generated are from a test that dr preston performed he chose the location of the electrodes on the plaintiff's body he chose where and when and how the test would be conducted this necessarily shows his thought processes and also he interpreted what those results were and put his conclusions and impressions based on his evaluation of the plaintiff he conducted not only a physical examination but he interviewed the plaintiff as well and based on his examinations found certain impressions and opinions this report is not like the surveillance video tapes that defense would have you recognize and shields in new schwanke or the appellate court correctly and squarely rejected that argument the surveillance tapes in full shields a new shanker are simply recording factual evidence and data they do not reveal the mental process of the expert the consultant in any way it is merely a depiction of a factual event that is completely different than the study we have here that report clearly puts the actor presence in pression based on his own review of the plaintiffs and his own examination at issue and that's the exact type of data that is protected work product in illinois now with regard to the re does ignition issue although illinois does not have any cases point this court has held that where there are no and i can point the court is able to look to the corresponding discovery rules of the federal courts on issues that they have addressed similar to our discovery issues now in federal court prior to two thousand and nine the better the majority view was that a retained testifying expert could be withdrawn and read designated into a consultant whose work product is shielded from further discovery absent exceptional circumstances and that is displayed in the northern district of illinois case and one ross view burlington and the logic behind that reasoning is that a plaintiff is entitled to change their mind about who is to testify at trial and that's a completely fair rule it is the plaintiff's burden three correctly in order to shield dr preston from further discovery as a consultant we have to look at the purpose for which dr preston was retained and he was specially employed for litigation and in he would have been fall squarely within to a one hundred and twenty three and the results of any testing he had me of don any opinions or records he would have reviewed would have been shielded from discovery in the st place so there is no technical gamesmanship the only difference between a two thirteen dollars f three expert and a tool one b three consultant is the intention to testify at trial so essentially one when dr preston was originally disclosed as an f three he never was fully disclosed because we did not provide his opinions or his report before withdrawing him as a testifying expert and this distinction is is huge because if report and opinions were disclosed prior to disclosure obviously he would be subject to a deposition and it would be essentially the cat's out of the bag however because we timely and promptly withdrew him under the  auspices of taylor v coli and re designated him as allowed by the federal courts there was no detrimental reliance or prejudice to the defendants and he fell squarely in the ambit and protections of circuit case as you see versus conic now this rule narrowed the rule slightly in that once the report is disclosed that and is the opportunity to claim confidentiality which is a fair rule because as i mentioned if you disclose an expert and give what their opinions are going to be and what their report contains you can't then go back and switch them to a non testifying consultant to shield them from a deposition that would be tactical gamesmanship here without producing his reporting claiming privilege and without having his opinions disclosed there was no tactical gamesmanship he it's the report itself being disclosed that ends the confidentiality so here because dr r i'm sorry dr preston's report was never disclosed to the defendant or his opinions disclosed yes we did have the report put however as the federal courts have held a plaintiff is entitled to change their mind about what evidence and what testifying x words will be presented at trial since it is the plaintiff's burden do so and as you know we disagree with the assumption that just because we withdrew him as a witness that means that the evidence was unfavorable to planet plaintive doesn't need to give a reason why they're not producing certain evidence or putting forth certain witnesses that's their own trial strategy or our own trial strategy doesn't need to be disclosed to defendants so in withdrawing dr preston that that happens all the time  litigation where an expert is withdrawn as taylor v kohli has stated now this court should follow the precedent that was set by the federal courts under the corresponding rule no defendants here have failed to show and meet their burden of exceptional circumstances now as anticipated by the committee notes for rule two a one b three discovery of a consultant is to only be had an extraordinary cases that's why they established or this court establish the exceptional circumstances test now the defendants could've gotten the same results and facts or opinions as dr of what exceptional circumstances are one is where a expert in is the only one in his field and has been retained by another party so the adversary is not able to retain their own expert on the matter that clearly doesn't exist here dr preston was a neurologist there's many neurologists in the chicago area the defense could retain to obtain facts and opinions on the same subject matter  that case although there wasn't an issue of re designation the issue was that the plaintiffs wanted the defendants consulting experts testing results on a tissue sample of the pla the plaintiffs failed to show exceptional circumstances this is exactly analogous to the situation we have here a tissue testing result is similar to an e m d study and nerve conduction study and should be treated in the same way as consultant work product only to be disclosed if there are exceptional circumstances which the defense has failed to argue and failed to show therefore they they are just not entitled to these records the tissue testing results found to the work product and past are far more similar than the surveillance video tapes that were found to be non of our product in the shields case and the appellate court held as never asked for at the appellate level and now they want in camera inspection and which would only kick the can down the road we would be in the exact same spot on appeal because the ultimate issue that needs to be decided is whether or this report was a litigation prepared report it was not for the purposes of medical diagnosis or treatment as was argued below dr preston is not a treating physician at all times was employed by the plaintiff and retain by the plaintiff to provide trial testimony and opinions for litigation so they are not entitled to the report on that basis as well because it's not a medical record as this court held and  preparation document cannot be relied upon it and if we take it to the exchange if this court were to remain and for in camera inspection and the records had to be produced even in a redacted fashion that would do nothing to resolve the issue of whether illinois wants to conform itself with federal law on the corresponding discovery rule whether you can read designate an expert into a consultant the other issue is that if the report had to be redacted are produced in a rejected fashion date the defense would still not be able to authenticate that document clearly dr preston would not be subject to a deposition and his opinions would not be able to be shared product covered by the consultant work product privilege into a one b three and that the plaintiff was able to timely to designate dr preston into a non testifying consultant thank you so much suggest that the federal courts are aligned with respect to re designation of an expert follow the press follow federal precedent we heard from plaintiff's counsel federal district court decisions are not precedent they are not binding on the judge that wrote it they are not binding on any judge sits in that district they are certainly not binding on the supreme court of illinois counsel suggest that this court take the path of least resistance this is the supreme court of illinois it makes the law especially with respect to its own rules the discovery rules are the supreme court rules with respect to the exceptional circumstances argument this court heard and it's the defendant's burden it's only a the plaintiff assumed there was privilege and said and privilege documents of a consultant is not produced this court could look at dr pressman and one of three ways consult under tool complete they were detailed they were factual they were proper under two hundred and thirteen of three what the plaintiff is asking this court to do is create an exception if the report of the controlled expert witness is not produced then he or she is not up to thirteen of three they can be called a consultant that's the nd status consultant would be privileged unless there are exceptional circumstances but to establish the privilege it's not our burden it's the pla the work product privilege that the results of dr preston study are run favorable to the plaintiff's case and that the trial court correctly ordered the plaintiff to produce the study if the court declines to draw any case for the limited purpose of producing the report to the trial court for the purpose of determining if it's privileged and to redact the part that is privileged and to produce the report in all other respects in any broad discretion great latitude with respect to discovery issues so it really it really doesn't matter what burke what standard to this court applies with respect to the motion hard concrete facts objective data and a report would also have the doctor's interpretation they're not the same this one is objective one is subject one it might be privilege one might not be if he is in fact a report they can't hear him you gotta find a way to protect the report the best way to do that were these now he's a consultant even though in the trial court he went from a controlled expert witness to a motion to read designate then a motion reconsider in the motion to reconsider he was fed to be a controlled expert witness but not a trader that's the rd status control expert witness produced the report treating physician produce the report consultant produced that part of the report due to not privilege however the court must go on the better the promise without seeing a week or there is no privilege because the plaintiff didn't prove the privilege the defendant doesn't have to so we would respectfully as