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ILLINOISKevin OwensJOHNSON & BELL, LTD33 West Monroe Street, Suite 2700Chicago, IL 60603Phone (312) 372-0770www.johnsonandbell.comowensk@jbltd.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Illinois favors the policy of disclosure. Monier v. Chamberlain, 66 Ill. App. 2d 472, 484(3d Dist. 1966). However, pretrial investigation materials may be exempt from discoveryif the materials are privileged under Ill. S. Ct. R. 201(b)(2), which states:All matters that are privileged against disclosure on the trial, includingprivileged communications between a party or his agent and the attorneyfor the party, are privileged against disclosure through any discoveryprocedure. Material prepared by or for a party in preparation for trial issubject to discovery only if it does not contain or disclose the theories,mental impressions, or litigation plans of the party's attorney.The burden of proving the privilege lies with the party claiming the exemption.Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 119 (1982). In the corporatecontext, Illinois courts follow the “control-group” test for the attorney-client privilege.Consolidation Coal, 89 Ill. 2d at 118-19. An employee is in the control group, andtherefore a “client” for the purposes of the privilege, if the top management would notmake decisions without his advice or opinion, and if his opinion in fact forms the basis ofany final decision by those with authority within the corporation. Id. Consulting experts’investigation materials are privileged from disclosure to the extent that such materialsreveal the experts’ thought processes. Neuswanger v. Ikegai Am. Corp., 221 Ill. App. 3d280, 286 (3d Dist. 1991). However, all other portions of the investigation materials thatdo not reveal such thought processes are discoverable. Id.2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?If written or recorded statements were taken during the investigation of an incident, andthe person attempting to prevent pretrial discovery of any such statements can provethat the statements are privileged as attorney-client or insurer-insured communication,discovery of the statement is prohibited. Exline, 277 Ill. App. 3d at 12 (wherein therecorded statement given by the insured plaintiff to the insurer’s employee during the