i want to thank the court for accepting our petition and giving me the opportunity to argue this morning i'd like to thank my amicus defendant who is not here today but they also wrote an amicus brief in support of our position prior to my argument this morning i received a lot of phone calls and we received a lot of  everybody's wishing me good luck telling me that i'm sitting carrying the weight of the defense bar on privilege issues but i'm not asking this court to rule on all aspects of the self critical one else's privilege there has been a tension about the privilege for years and off adderall and in our other courts and there have been recognition of the kinds of documents that are sought to be protected i'm limiting the argument today to really the one he one type of report that we're seeking to protect and that's the peer review report packets that was prepared by the defendant after a single incidence i'm not talking about affirmative action studies or corporate involved all other kinds of decisions and weighing of factors i'm really only looking at the specifics of this case and even the privileges aside on a case by case basis we're talking about really a tortie action where there's a report done after a loss and whether or not the impressions made by my defendant which are usually subjective a value to it and critical could be produced to the point now what happened in this case is very simple we were asked to produce a document we took a from a contempt and were not before this court the trial judge actually spearheaded our feeling was very supportive of this privilege but felt constrained because there is no illinois common law that addresses this and there is no legislative statute that addresses this case went up to the first district in the first district correctly stated that it really had no power to do this it was no statute and it also privilege i believe you do the first place to look is rule five a one which if i could read to the court states that except as otherwise required by the constitution of the united state constitution of illinois or provided by applicable statute or rule described by the supreme court the privilege of a witness person government state or political subdivision thereof shall be governed by the principles of common law as they may be interpreted by illinois courts in the light of reason and experience this rule has been decided in two thousand and ten in a small package by the supreme court is the rules that were supposed to be referring to in this game after the berkut decision all the decisions sided against us and state that the judiciary really cannot create a common law exception for the privilege and it has to come from the legislature that is not right and i think when this court reviews  d and the decision of homer and look at wigmore to the rest of one you can create a privilege you will see that this is something that your collective wisdom says allowed to rule on and actually the spouse the n qualify under that yeah that's my question given that the legislature is already active with respect to the privilege what authority does this court have to expand the privilege beyond what the legislature already has  scope to do what the medical profession i would be foolish to ask the store to expand to read an exception into the sacked we're not asking for that we know that there is no act that covers the social service agency this agency over the years  us hires one help united to do as an adjunct for the government everything the d c of us does and we get none of the pie actions we certainly cannot promulgated a legislative act with the resources that we have we can only take a look at wigmore for the cat more and look at the or part chasse to say and i create a privilege so for an example we look at the thomas decision thomas versus page decision in the second district really speaks to what i'm asking this court was subpoenaed to give op its records to give up its deliberations to give up deliberations among one another and them on the law clerks there was no statute governing this there was no rule governing this the court chaos to create a judicial deliberative privilege on the second district doing the waiting agreed that it had the power to do that and that's all we're really asking is that your collective reason and experience is allowed to create ai privilege that exists outside of the legislative act and perhaps years from now it might be codified as greatest was codified years later by the medical studies act but my agency doesn't have the resources as i indicated to lobby for something that will cover them in all these respects so you are permitted under the law five alone in the case of forty to create this privilege to make it as narrow was you'd like for the purposes of this case and then as we ask and as the need is ask to come up with a test so that this can be sent back to the trial courts because the issue of privilege is something that the circuit court judges deal with every day i mean they have i'm privileged or a few privileged informal privilege surveillance privilege those are all purposes that have rules there and statutes but there are other crimes that are created as i just indicated which is the judicial deliberative privilege there are collective bargaining privileges that are not instantiates and all we're asking the court to do is to decide how it wants to create this privilege you do not have to resolve this the way the federal courts do this is totally up to your armor's but there is a good deal of discussion in our federal courts particularly the thai situation because there was a personal injury case that involved tort and prior to ties there was some argument that these reports should only be protected if they were government governmentally mandated but i said now there can be a voluntary type of report and that is exactly what one hope united does there is a death which is a tragic loss but we need to learn from it so within days puts together a quality assurance division that looks out for what happened and the he is we review we investigate and we learn this is all done so that we can prevent another death like this for the safety and health of the public so once the court realize that it then the door to this privilege and it needs to look at the factors to see what those rights and my trying to protect here and we have a balancing test now i know all the plaintiff's bar mr my opponent will argue to you that discovery we need to get to the truth private factor of one individual's rights cover versus the public good that would be served by this candid free falling information that's done via my agent after at last he calls they are doing this investigation from an exposure point of view insurance or i know it's been suggested why don't you just send it to an attorney and cloak and well you and i know the attorney would tell you nothing down so that's not the purpose of these reports if you take a look in the record at page three thirty nine which is the shell of what the peer review packet consists of we've been very careful not discuss the packet because i don't want to waive what i believe is privilege but if you look at three thirty nine it tells you exactly what the report will look like for us involved in it how it was done by committee and it says there was an expectation of confidentiality so when you bring in the case workers and when you're playing in the staff and you ask them what happened how did this child die they can be candid there can be a free flow of this information if they feel that it's retaliatory that this will play to a big judgment if they be fired then there's going to be a chilling effect so when you look at the fourth part test which has been discussed ad nauseum and all the cases the super spoke in my opinion is usually the third prong which is the chilling effect wrong because if you are the police department it's not colac to say well we would never investigate this anyway that's not true but in our situation not for profit which is putting together this committee in order raise the issue of concerns about chilling effect and whether or not the employees and others here would be candid in their discussion about what happens when you dress the child death review team act that requires that after a death nationals from disparate disciplines and agencies who are responsible for children should share their expertise and knowledge of the goals of determine the cause of children and preventing future deaths can be achieved so in other words whether or not there is concern here but balance it sure and you're saying that unless there's a privilege there would be not incentive for the agency to review what took place and to make changes alternately for the protection of fear of any criminal charges it's not a fear of licensing accreditation or having a licensing polled it's a voluntary thing that they participate on internally that we're asking to be protected because there are other acts the mantle health  be fearful of the accreditation or the licensing or the finding but just turn to leave what happened how can we prevent it but us candidly discussed what happened there won't be any retaliation this is something that's voluntary it's not a federal mandated require man it's nothing that they have to do it's what they want to do and they do it very only in order to promote safety and how and since this decision has come down there has been a chilling effect i haven't reached  my defendants to say what should we put down maybe we'll just gloss over what happened just put down some facts because that's all we have to give up are the facts that's not the true meaning of these reports of this peer review and i believe that strength and the lobby and the persons behind us and the funding to make a stab at getting a change not only on this privilege issue but on a lot of issues involving my agencies because we aren't protected by the court of claims we're not protected by we're not protected by sovereign immunity we're not protected by not for profit being a municipal corporation we are then ten years ago in front of this court court all that there was a very strong test that we would have to meet for servicing the public and we cannot meet them what i'm suggesting is there might be a need for a complete legislative look at these types of case workers of these type of agencies but we don't have the ability to do that and this court can give me or give the agencies this privilege common law that certainly can exist if previous came down and i believe it was in one thousand nine hundred seventy three and it took nine years for the legislature to finally get the medical studies in and between until it was caught up by the privilege it was a lot of common law so i think the small step that we need if that dealing with caps and all these other immunities is this crush unary immunity at this level and the privilege and we've likened it to subsequent remedial repairs i'm not suggesting by any means that it is a subsequent remedial repair because sometimes the evaluation doesn't even get into that point what we do to correct it with the privilege be limited to discussions that occurred after the incident giving rise to the litigation yes it would but not just seeking any more he accident investigation to be protected we really are looking for the discrete incident which is the death case the accident and all of the deliberation in connection with and the process be privileged that's really what we're asking for it's in this discovery package because there is the six taishan of privacy and i do believe that the public interest in this case far outweighs the private interest in this one death case because we're trying to prevent future death cases and i'm not trying to be a lack of sympathy to a family that loses a child because it's a terrible incident but we don't i think this is financially and all i'm suggesting to the plaintiff's bar is where is your necessity that's what the courts usually send it back to the trial judge for when you take a look at the cases involving privilege it's not only the burden of the defendant seeking to protect but the plaintiff where is the necessity for this information how are you prevented from proving your case where is the prejudice to you this isn't about truth we're not ford motor company and the people who are decision we are we with our information and lied you will have all the truth and everything that you need you will just not have the subjective commons of the defendants in this privileged review board where they may and at least say we could have done better we should have done better but if there's another way to do that those words will be use for impeachment purposes and that's what we're asking the court to weigh with the policy of had put the child with the mother and we as a caseworker won out every week and to see if the child was thriving and if there were any signs of any problems that were the case of the merits of the case the defense of the case which i don't think is an this report and say that's an inconsistent statement we should be able to page it because the purpose of the report far outweighs the impeachment and if you look at vienna and if you look at the new york decision which we  court indicated when all you're trying to do is page credibility or if i tried to do is to cross examine those are the necessities that the plaintiff's bar needs to prove to overcome the privilege so this has already been addressed in my opinion i don't think that would be exceptional enough but it is and it qualified immunity it's not absolute immunity like the medical studies here and there is wiggle room if the plaintiff spark and come forward and prove and explain why do i need this report in this one given case i don't think the plaintiff and i meet that founding in this action of we are here today to decide the issue of whether there is proper justification for the creation decisions of this court are clear that generally the legislature is the best branch of government for the ration of privileges  analysis process or improvement there would be no you through admissions or opinions for you to discover quite frankly i just as i don't know what you show you but if they hadn't done anything there wouldn't be a report is that correct that is right is there an issue that we should be concerned with the scores public policy as to whether or not we should encourage this type of review believe that you know what frankly is an issue in this case due to the fact there years ago such a privilege that exists at this point and i do not believe that there public policy as a full investigation of the death of children and i believe that that should be a basis for this court took order if this report being turned over in the first place and it does and it's our position my question really was if we do not create the privilege does not the trial court still have the opportunity to limit the way in which this report and the information in there is used in the actual trial yes i think the  change to me that if you want to use that information for what happened in this case it was entirely appropriate i think the concern i have is are you wanting to use the report which might talk about remedial measures remedial discussions that is that the same as saying there's a privilege no i have privileges marked for it cops say it is more has more of a chilling effect as to relevant evidence that can be obtained which goes back to my other question if we say there is no privilege and you have all of the information but some of the information in that report are discussions about remedial trumps the need to have full and complete investigation of this trial stack which we do not believe is the public policy of the state we do not believe it should be a public policy for many years they did i do have been around long enough that i can remember those years so this is really kind of a new game when the subcontract with agencies to write these type of service  you the past trend in this country seems to be moving away from this privilege i've cited various cases from other states other federal districts that it is and the states of california or get it all are moving away from this privilege and say that no such privilege is to exist and as a result the trend is to read is to not write you guys is so critical limited communications such as this by granting these types of privileges and as a result i believe that the court here should follow these types of that of course that organ is being made in connection with this piece do we as record need to take into consideration the policies how this affects the betterment of services to children in general i think  privilege that however was a very limited set of facts that would not have the overall chilling of that that this case if you find a privilege in this case of would create the home or decision by the court in creating that limited privilege process was very important but in this particular case you're dealing with the death of an eight month old girl and the we believe that facts of this case and the chilling effect that this type of privilege so for those reasons you know i believe that though of course that your argument suggests that there might be cases where it is important if it's this case that it's not important if you get to the fact finding process is it true privileged the score doesn't have to worry about trends this case of first question say case it's quite can do whatever it wants should be possibly influenced by some of the cases in illinois particularly because my agency can be sued and diversity be privileged because at the time there wasn't this privilege at the time the caseworkers don't know anything about privilege or miss ability they just know that they're being asked if the truth and to be critical and be candid and that's all the expectation that's needed for this privilege to be enforced we don't really think about admissibility that's the problem with that attorney who's running client work product we're thinking can it be admissible in court and we use it a trial i'm not suggesting that this be given any credibility to go as far as a trial judge because we all know from subsequent media repairs we've got inconsistent decisions all over the place which is why this court did not initially put rule four seven in the initial handbook in two thousand and ten because waiting for its decision to see whether or not it i think it was your blonsky how the court was going to deal with for all seven in a product setting and now there is a draft of this rule so we all know that there's a lot of the error that's made at the trial level delivery of post subsequent repairs we're not looking at this really is an app and actually for trial we're looking this is a discretionary immunity for discovery we don't believe it should be given up at all and it should be decided by the tr if it can be used or not as far as per cat is concerned the problem with those decisions were that the respondent that was seeking to quash the discovery was trying to get exceptions or exemptions from the already existing hacks either have for y every because they're going to ask all the witnesses what happened and my defense are going to be opinion witnesses anyway because the planet is going to retain opinion witness as my defense can't give opinions on facts that are all hearsay the people on the audio review are not involved in the incident they only hear the parents from the caseworkers so they're not fact witnesses and they're not really opinion witnesses because we don't make them opinion witnesses so we're all talking about evidence admissibility and what will go in and what might go in and all want of you know i don't want to know is that they continue to make these reports and they do them quickly and they do them before there's a loss and they do that before they talk on issuance company and they do that before they hire a lawyer and can they bring in everybody from all walks of life or involved in the case to give a truthful pat statement what happened and i'm worried about the control group and i try to protect it by just the top people they bring people of all walks of life that's what happens to my body meetings to staffs the technicians the janitors everybody come sit in there truthful and we really need to keep that and free flow opportunities because otherwise one of the agencies will not be able to function or two agencies will close down or three  that's the right thing to do and they get protected and they should be protected that was the policy of the state and all i'm suggesting for the truth of safety promoting health protecting the next child who is killed and the the court to place open the door in this limited case and if they cannot close american law based on what's in the record then we don't have to produce the document or the rat pack and then we may have to judge brewer who i know is very anxious to get some guidance day one that you can create a privilege without a statute but there are factors you have to consider so are you going to protect restaurant tours or come in and say we we investigated an accident and our our documents are privileged you and i both know that's not what they protect them from they're not trying to improve just writing a report those are privileged so we're really asking for a very narrow privilege in this case for peer review and a very specific setting and then once the door is open and the factors are discussed it will be fifteen to make this happen in illinois in this court has done wonderful things over the years has been this change the law and we can change that because this case is crying out for the change thank you very much for your time thank you he number one one seven two hundred