Illinois Court Rejects Invasion of Privacy Claim Against Johnson & Bell

This case is captioned Merdelin Johnson v. Johnson and Bell, Ltd., and Target Corporation, Robert Burke and Jennifer Rose, 2014 IL. App (1st) 122677.

Johnson filed a personal injury lawsuit against Target corporation. Later she found that Target and its lawyers had attached documents to the final pretrial order that included her “social security number, date of birth, financial information, medical information and references to ‘G.J.’, a minor. She filed a sanctions motion in the federal case on the basis that Target had filed the documents in the public federal computer filing system and that Target had violated the Court’s rules that personal information be redacted from filed pleadings. The federal court denied the request for sanctions but required Target to redact the documents containing the personal information.  Plaintiff filed a similar motion before the Seventh Circuit, which was also granted.

After the federal litigation had concluded, Johnson filed a complaint against Target and the lawyers for invasion of privacy and other torts. The defendants moved to dismiss. The trial court dismissed the complaint pursuant to Section 2-619 of the Illinois Code of Civil Procedure on the basis of the absolute litigation privilege, res judicata and collateral estoppel. 

The Appellate Court affirmed on the basis of the absolute litigation privilege. That privilege holds that “An attorney is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he proceeds as counsel, if he has some relation to the proceeding. The Appellate Court found that the absolute privilege applies to invasion of privacy lawsuits as well. Furthermore, the Appellate Court agreed that the absolute litigation privilege applied also to the other causes of action, such as negligent infliction of emotional distress.

The Appellate Court also noted that “there is no civil cause of action for misconduct in prior litigation.” ¶19 (quoting Harris Trust and Savings Bank v. Phillips, 154 Ill. App. 3d 574, 585 (1987). In other words, the plaintiff was required to litigate this issue in the federal case, not in another lawsuit.  The opinion distinguishes Kurczaba v. Pollock, 318 Ill. App. 3d 686 (2000), which held that the absolute litigation privilege did not apply where a party to litigation sent the complaint to third parties not involved in the litigation.

In sum, this case reminds us that federal sanctions litigation belongs in federal court and should not be relitigated in the state courts.

Edward X. Clinton, Jr. 

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