Claim Of Privilege In Discovery Dispute Reviewed De Novo

Discovery orders in Illinois generally are not immediately appealable. But a party can get an immediate appeal by refusing to comply with the order and then being held in contempt of court for doing so. The contempt order is immediately appealable.

The Second District Illinois Appellate Court recently stated this rule and identified the standard of review when a party refuses to comply with discovery based on privilege. “Berkman’s appeal of the contempt order requires us to review the underlying discovery order … On appeal, Berkman challenges the trial court’s determination that neither the attorney-client privilege nor the fifth amendment privilege shielded the requested documents from discovery. Although discovery orders are generally reviewed for abuse of discretion, we review the trial court’s determination of whether a privilege applies de novo …”

The whole case, Mueller Industries v. Berkman, No. 2-09-0134 (3/23/10), is available here.