TDR secured a significant victory in the Illinois Supreme Court, which today issued an important decision concerning a matter of first impression in Illinois: whether the extrajudicial (i.e., out of court) disclosure to a third party of attorney-client communications waives the attorney-client privilege over private, undisclosed attorney-client communications concerning the same “subject matter.” In a unanimous opinion, the Court answered this question in the negative: “[W]e hold that subject matter waiver does not apply to disclosures made in an extrajudicial context when those disclosures are not thereafter used by the client to gain a tactical advantage in litigation.”
The decision reversed circuit and appellate court rulings that would have required TDR’s clients, Growth Head GP, LLC, Westfield America, Inc., and their affiliates (“Westfield”) to produce to their litigation opponents hundreds of privileged attorney-client communications concerning a 2002 business transaction. Prior to the Supreme Court’s decision, the lower courts had ruled that Westfield’s discussion of legal issues with business counterparties in negotiating the 2002 transaction effected a broad “subject matter waiver” of the attorney-client privilege and required Westfield to turn over its attorney-client communications concerning the transaction. In reversing these decisions, the Supreme Court adopted the rule of law proposed by TDR and its clients and permitted them to protect their privileged attorney-client communications from compelled disclosure.
The ruling represents the first ruling from any state’s supreme court on this important issue.
TDR attorneys Gino L. DiVito, Brian C. Haussmann, Karina Zabicki DeHayes and John M. Fitzgerald, together with their co-counsel at the New York firm Debevoise & Plimpton LLP, were responsible for briefing the appeal. TDR partner Gino L. DiVito argued the case on September 18, 2012 before the Supreme Court.
The case is Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107. A copy of the opinion is available here.