## Facts

- Consolidation Coal Company operated a coal mine in Pinckneyville, Illinois.
- Bucyrus-Erie Company designed, manufactured, and repaired a large wheel excavator used at Consolidation’s mine.
- On August 7, 1973, the wheel excavator collapsed.
- On January 18, 1977, Consolidation sued Bucyrus-Erie in Illinois state court seeking damages allegedly caused by the collapse.
- During discovery, Consolidation served broad document requests seeking materials about the excavator’s design, manufacture, erection, repair, and the investigation of the collapse, including notes, memoranda, reports, statements, interviews, photographs, and test data.
- Bucyrus-Erie produced thousands of documents but withheld certain items, claiming attorney–client privilege and attorney work product, including:
  - a metallurgical notebook/report prepared by employee Richard Sailors,
  - a report prepared by Tom Learmont (an engineering director), and
  - memoranda and notes prepared by Bucyrus-Erie’s in-house counsel summarizing interviews with company employees.
- The circuit court required in camera submission of the disputed materials and then ordered production of the Sailors material and most of counsel’s interview notes, allowing limited deletions for protected attorney material; the Learmont report was treated as protected and not ordered produced.
- Bucyrus-Erie refused to comply with portions of the production order. Its attorney was held in contempt and fined $50 to permit immediate appellate review of the discovery ruling.
- The appellate court largely affirmed the discovery rulings and the contempt mechanism.
- The Illinois Supreme Court allowed review to address the scope of attorney–client privilege and work-product protection for corporate materials and communications.

## Issues

1. Under Illinois law, when does a corporation’s attorney–client privilege apply to communications involving corporate employees, and does it protect in-house counsel’s interview memoranda of non–top-management employees?
2. Which disputed materials were protected from discovery as attorney work product, and to what extent may a court require production of factual investigative content while protecting attorney mental impressions?
3. Was it proper to use a contempt citation with a nominal fine as the method to secure appellate review of the underlying discovery order?

## Decision

- The court applied Illinois privilege law to the dispute.
- The court reaffirmed Illinois’s corporate “control group” approach to attorney–client privilege and held that Bucyrus-Erie did not show that the communications recorded in the in-house counsel interview memoranda came from control-group personnel; therefore, the memoranda were not protected in full by attorney–client privilege.
- The court held that the work-product doctrine did not automatically bar discovery of technical or factual investigative materials prepared after the accident, including the Sailors metallurgical notebook/report, to the extent it contained factual testing, observations, and engineering analysis rather than attorney thoughts.
- The court approved requiring production of in-house counsel’s interview notes and memoranda with redactions limited to portions that would reveal counsel’s mental impressions, legal theories, or similar attorney thought processes.
- The court accepted the protective treatment afforded to the Learmont report (as handled by the lower courts) and did not require its full disclosure.
- The court recognized contempt with a nominal fine as an accepted procedural device to obtain immediate review of a discovery order and addressed the discovery issues through the contempt appeal.

## Legal Principles

- In Illinois, corporate attorney–client privilege is limited: the “client” for privilege purposes is the corporation’s control group—top management with final decision-making authority and those who directly advise that group such that their advice forms the basis for corporate decisions.
- The corporation bears the burden to establish that a withheld communication meets the control-group requirement and was made in confidence for the purpose of seeking or receiving legal advice.
- Notes or memoranda prepared by corporate counsel that merely record factual statements from employees outside the control group are not, by that fact alone, protected by attorney–client privilege.
- Attorney work product protects an attorney’s mental impressions, legal theories, and similar attorney thought processes; factual material gathered in an accident investigation may be discoverable even if collected after counsel becomes involved.
- Courts may use in camera review and selective redaction to separate protected attorney mental impressions from discoverable factual content within the same document.
- A party may refuse compliance with a discovery order, submit to a contempt finding with a nominal sanction, and then seek immediate appellate review of the discovery ruling through an appeal of the contempt order.

## Conclusion

The Illinois Supreme Court resolved a corporate discovery dispute arising from an excavator collapse by applying Illinois privilege law, limiting corporate attorney–client privilege to control-group communications, allowing discovery of factual investigative materials (including much of counsel’s interview memorializations) with redaction of true attorney thought processes, and recognizing contempt as the procedural route for prompt review of contested discovery orders.


Consolidation Coal Co. v. Bucyrus-Erie Co., 432 N.E.2d 250 (1982)