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Discovery in Complex Litigation: The Dilemma Faced by the Judiciary

NCJ Number
Loyola University of Chicago Law Journal Volume: 19 Issue: 3 Dated: (Spring 1988) Pages: 1113-1132
B Havey
Date Published
20 pages
Privilege rules are important in the discovery phase of complex cases, yet judges often face problems in determining which privilege rule to apply.
The law of the forum will not always govern the application of privilege, thus a judge must determine which privilege rule to apply when several lawsuits arising from a single incident are pending in several jurisdictions. Illinois applies a State rule on the attorney work product privilege that is narrower than the privileges allowed under the Federal Rules of Civil Procedure. In Federal practice, the attorney-client privilege has been applied to communications between mid-level managers and corporate counsel. Illinois, on the other hand, favors a policy of broad discovery and applies the attorney-client privilege only to communications between corporate counsel and top corporate managers. Other State courts have their own rules for the application of privilege. A uniform privilege rule to be applied in all complex cases is needed. The American Law Institute should lead the way by presenting a uniform privilege rule for adoption by all 50 States to by applied whenever there are complex cases pending in 2 or more jurisdictions. 109 footnotes.