USA – ILLINOIS Trends and Developments Contributed by: Michael Forde, Brian O’Meara, Ellie Carey and John Ransford, Forde & O’Meara LLP
It is important to note that other limitations may arise in fringe situations. The Illinois Supreme Court has not foreclosed circuit court judges from denying motions for substitution of judge as of right where doing so is necessary to protect the integrity of the court and prevent abuse or manipulation of the system, such as to prevent judge-shopping, though the precise nature of that limitation is vague. Nevertheless, circuit court judges are generally wary of denying motions for sub - stitution of judge as right because, if it is later deter - mined by a court of review that a circuit court judge erroneously denied such a motion, all proceedings that occurred after the denial are void, and all of the proceedings must then be re-done. The second method of substitution of judge is “for cause”. This is a less common method with a much higher standard, and is reserved for situations where a judge demonstrates actual prejudice against a party through prejudicial trial conduct or personal bias. It is not enough that a judge makes unfavourable rulings: the judge must be engaged in conduct that prevents a fair judgment in the case; see generally 735 ILCS 5/2-1001 (a)(1). Scope of the attorney-client privilege Illinois courts apply a more restrictive test in determin - ing whether communications in the corporate con - text are protected by the attorney-client privilege. In federal court, communications between all corporate employees, regardless of their role or responsibili - ties, and the company’s counsel are protected by the attorney-client privilege as long as they are made at the direction of corporate superiors in order to secure legal advice, and the communications concerned matters within the scope of the employee’s corpo - rate duties; see Upjohn Co . v United States , 449 U.S. 383, 394 (1981). In Illinois, the Upjohn standard does not apply. Instead, courts apply the much narrower “control group” test; see Consolidation Coal Co . v Bucyrus - Erie Co ., 89 Ill. 2d 103, 119-120 (1982). Under the control group test, only communications between the company’s counsel and those in its con - trol group are protected from disclosure. There are two tiers of employees who qualify as members of the control group:“( 1 ) top management who have the ability to make a final decision ; and ( 2 ) employees
who advise top management in a particular area such that a decision would not normally be made without their advice or opinion , and whose opinion forms the basis of any final decision made by those with actual authority . With respect to the second tier , [ there is ] a distinction between opinion and information . Thus , while employees whose opinion forms the basis of a decision are part of the control group , individuals upon whom [ top management ] may rely for supplying infor- mation are not members of the control group ” ( Doe v Twp . High Sch . Dist . 211 , 2015 IL App (1st) 140857, para 105). Furthermore, the distribution of otherwise privileged material to individuals outside of the control group destroys the privilege. Because Illinois’ control group test is much narrower, corporate clients should be advised to limit any attor - ney-client communications to those within the control group when there is, or might be, litigation in Illinois courts. Motions to dismiss Illinois law provides for two types of motions to invol - untarily dismiss a pleading: • motions to dismiss under Section 2-615 of the Illinois Code of Civil Procedure (“2-615 motion”) for failure to state a claim under which relief may be granted; and • motions under Section 2-619 (“2-619 motion”) to dismiss based on certain specified defects or defences. Unlike federal court, which only requires notice plead - ing, Illinois is a fact-pleading jurisdiction, meaning the pleader must allege sufficient facts to support a claim or defence. A pleading does not need to rely on or cite evidence, but instead needs only to allege the facts that support a claim or defence, although the factual allegations must consist of more than mere conclusions. A 2-615 motion tests the legal sufficiency of the plead - ing and asks the question: “if all the well-pleaded facts in the pleading are proved, would the pleader be enti - tled to a judgment in their favour?” As with federal rule 12 (b)(6), a 2-615 motion must be confined to the pleading to which it is directed and cannot rely
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