Land hearing

[wvhsparent]

Glad to see the Sun is on the ball for a motion that was filed and denied in July

[wvhsparent]

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
DUPAGE COUNTY, ILLINOIS
Board of Education of Indian Prairie
School District No.204, et al
MS
Hazel S. Brodie Trust, et al
))))
)))
)
ORDER
2005 ED 79
Pursuant to the Court’s Order of June 28, 2006, Board of Education of Indian
Prairie School District No. 204 (Plaintiff) has presented the Court with its Third
Amended Privilege Log and copies of the documents in which a privilege is
claimed. Hazel S. Brodie Trust (Defendant) has sought the release of those
documents in its Amended Motion to Compel. The Court has considered
Defendant’s Motion, Plaintiff’s Response and Defendant’s Reply (only) and
following the presentation of evidence, arguments and authorities by the parties
and being fully advised in the premises, find as follows:

The Log contains 26 individual items; 10 claim protection under the Open
Meetings Act alone, and 13 claim joint protection under the Open Meetings Act and Attorney-Client privilege. Two items claim protection under the Attorney-Client privilege alone, and 1 claims protection under "Deliberative Process", a privilege the Plaintiff has not argued, and one with which the Court is not familiar.

The Court notes the recent amendment to the Open Meetings Act (51LCS
120/2.06(e), effective January 1, 2006, denying this court authority to order disclosure of executive meeting minutes in "... any judicial proceeding other than one brought to enforce this Act." Therefore, barring the Plaintiff’s own determination to open its’ executive meeting minutes, which has not occurred, the Open Meetings Act privilege apparently protects all items on the Third Amended Privilege Log except three - Item numbers, 16, 23 and 26.

Defendant has argued that Plaintiff has waived both the Open Meetings Act and Attorney-Client privileges because many of the meetings included persons other than members of the Board, its’ control group, and attorneys participating as attorneys. The court has reviewed the documents represented by the Third Amended Privilege Log. Based upon the documents and evidence presented, the court finds there has been no waiver of either privilege by this reason. The court specifically finds the presence of cabinet level personnel during discussions outside their own specialty does not waive either privilege. Further, the court specifically finds that at no time did the Board’s attorneys conduct themselves in
a manner that would disqualify portions of the minutes from the client’s claim of Attorney-Client privilege.

Item 16, the June 10, 2005 letter from attorney Stuart L. Watt to Howard E. Cruse is protected by the Attorney-Client privilege. Item 26, a series of 8 e-mails between attorney Richard T. Petesch, Chris Vickers and Howard Cruse is also protected by the Attorney-Client privilege.

Item 23 appears to be two 2/12/06 e-mail communications between two Board members, Jeannette Clark and Mark Metzger, regarding drafting
recommendations for the final wording of a "Land Criteria Table" and a "Land Analysis Report." The court understands that both documents have been made public in a final form. The court finds Item 23 to be without valid privilege protection, and therefore subject to discovery.
Based upon the forgoing, it is hereby ordered that Defendant’s Motion to Compel is granted as to Item 23, and denied as to all other items listed on the Third Amended Privilege Log, which Log the court finds to be in compliance with Supreme Court Rule 201(n). Plaintiff shall provide copies of Item 23 to Defendant within 7 days of today’s date. Additional deposition questioning regarding Item 23 may be undertaken, to the extent it may be relevant. All other discovery shall proceed pursuant to the court order of June 28, with the hearing on the Traverse to commence October 10, 2006, at 9:30 A.M. in courtroom 2008
without further notice.


Entered this 11th day of August, 2006


Judge Robert K. Kilander

[wvhsparent]

Looks like a Final Date has been set by the judge to start the Traverse hearing Jury trial on 11/06/2006.
Continued from 10/11/2006 at the request of the BB trust over the objection of the SD.