SharpThinking

No. 182   Perspectives on Developments in the Law from Sharp-Hundley, P.C.     May 2020

Courts Crack Down On Summary Judgment Affidavits

By John T. Hundley, John@sharp-hundley.com

Litigators frequenting Illinois state courts had best beware: the requirements for affidavits supporting and opposing motions for summary judgment increasingly are being interpreted strictly.

That’s the message being sent from a number of recent cases, most especially by the Appellate Court in Chicago in Selby v. O’Dea, 2020 IL App (1st) 181951.

Selby was a case where subrogation defendants sued a Cook County lawyer and State Farm Mut. Auto Ins. Co. for fraud, abuse of process, conspiracy to commit abuse of process and malicious prosecution.  The case arose out of defendants’ alleged practices of, among other things, avoiding having service of process attempted by the sheriff, obtaining private-process-server orders with false motions, and then utilizing a layman to allegedly serve process instead of the appointed process server.

After the case had been pending for four years, State Farm moved for summary judgment on the civil conspiracy count, attaching affidavits from its outside lawyer (O’Dea) and its in-house claim section manager (McCann) denying the charge.  The McCann affidavit expressly was based on a review of State Farm’s files, and the O’Dea affidavit impliedly was based on a review of his firm’s files, but neither affidavit attached thereto the documents upon which reliance was made.  Nonetheless, the trial court granted summary judgment.

Documents Required:  The appellate panel reversed, basing its decision on Illinois Supreme Court Rule 191(a).  That rule requires that summary judgment affidavits “shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim .  . . is based;” and “shall have attached thereto sworn or certified copies of all documents upon which the affiant relies”.

“The requirement that documents be attached is not a mere ‘technicality’ and, if not adhered to, is fatal,” the court said.  “McCann explicitly stated that he relied on the claim file materials and claim activity logs.  The law required State Farm to thus attach those documents to the affidavit.  His affidavit is fatally flawed as a result.”

The court rejected an argument that redacted copies of some of the documents had been produced in discovery, saying that fact was “utterly irrelevant” to the question of compliance with Rule 191.  Rule 191, it said, “is rigid; there is no such thing as ‘substantial compliance’ with Rule 191(a).”

Personal Knowledge:  The court also rejected the O’Dea affidavit, though on somewhat different grounds.  The O’Dea affidavit did not explicitly rely on documents not attached thereto, though the court thought it implicitly did, because O’Dea could not possibly have personal knowledge of all the facts offered.

Because O’Dea had relied either upon review of documents or conversations with other persons, the court said that if “Rule 191(a) testimony is . . . based on inadmissible hearsay, the affiant could not competently testify to those facts at trial, and Rule 191(a) is not satisfied.”

“The personal-knowledge requirement forces affiants only to testify about facts within their personal knowledge, and if that knowledge was gleaned from an external source (oral, written, whatever), the affiant must say so.  And if that source is written, that written document must be attached.”

Privilege No Defense To Rule 191 Violation

The court in Selby next confronted a newly-offered excuse for the Rule 191 violations: the documents not attached to the affidavit were privileged.

“Does the attorney-client privilege permit State Farm to avoid the attached-documents requirement of Rule 191(a),” the court asked.  “The answer, in our view, is a clear no.”

“The documents, not McCann on his own, contain the critical information, so without those documents admitted into evidence, there is no evidence for the court to consider.  State Farm could fail to admit those documents into evidence as an accidental oversight, as a deliberate invocation of privilege, or for any other reason,” the court said.  “It would make no difference.”

“The invocation of the attorney-client privilege provides no relief from the attached-documents requirement of Rule 191(a).”

State Farm argued that this view would have a chilling effect that would punish a party for invoking the attorney-client privilege.  “We have never suggested that the attorney-client privilege comes without consequences,” the court replied.  “The attorney-client privilege guarantees only one thing – that a client may keep its communications with counsel secret.  It does not guarantee that invocation of the privilege will be painless.”

Selby is an important decision on any number of points.  We’ll discuss some more of those in the next issue of Sharp Thinking.  In the meantime, look for a petition for the Supreme Court to grant review.

Also note that while Selby dealt with summary judgment affidavits, Rule 191 is not so limited, applying also to affidavits in support of motions to dismiss and motions contesting jurisdiction over the person.  Presumably the Selby rulings apply in those contexts also.