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Absolute litigation privilege continues its expansion in Illinois

12/17/25

By: Patrick Eckler

In the recent decision, of Lewis v. Kalbhen, 2025 IL App (1st) 242110, the Illinois Appellate Court, First District, reaffirmed and meaningfully expanded the scope of the absolute litigation privilege, providing important protection for parties, counsel and litigation support professionals facing claims arising out of conduct undertaken in connection with active litigation.

The case arose out of a contentious divorce proceeding. During the litigation, counsel for the wife retained a private investigative firm to run a license plate search and conduct a background investigation on a third party believed to be financially entangled with the husband. The resulting report contained identifying and financial information, including a Social Security number. After the divorce resolved, the third party sued the wife and the investigative firm, asserting claims for intrusion upon seclusion, public disclosure of private facts, statutory privacy violations, and injunctive relief.

The trial court entered summary judgment for all defendants, and the appellate court affirmed, holding that the absolute litigation privilege barred every common law claim asserted.

As to the wife, the plaintiff argued that her conduct asking a friend to photograph a license plate and forwarding that photograph to her divorce counsel was personal, intrusive, and unrelated to the litigation. The appellate court rejected that framing. The court focused not on motive, but on relevance. Once counsel was retained and litigation was pending, actions taken to identify potential witnesses or financial entanglements fell squarely within the scope of conduct pertinent to the litigation.

The court emphasized that the privilege applies not only to statements, but also to conduct undertaken in furtherance of litigation objectives. Because the investigation ultimately led to discovery relevant to dissipation and asset distribution issues, the wife’s actions were protected, even if they were initially motivated by personal concerns.

The most significant aspect of the decision concerns the claims against the private investigative firm. The plaintiff argued that the absolute litigation privilege should not extend to non attorneys, particularly where no written engagement agreement existed and the investigator allegedly acted without compensation.

The appellate court disagreed. It held that investigators retained by counsel act as agents of the attorney and are entitled to the same absolute immunity, provided their work pertains to pending or contemplated litigation. Extending the privilege to investigators, the court explained, is necessary to preserve counsel’s ability to investigate claims fully and to obtain information needed to advance a client’s case without fear that litigation support professionals will later become targets of derivative lawsuits.

The court also rejected the argument that the scope of the investigation rendered it excessive or irrelevant. Background information, including historical data and identifying details, was deemed reasonably connected to potential dissipation claims and discovery strategy.

Illinois’s approach places it firmly within the majority of jurisdictions that interpret the absolute litigation privilege broadly and extend its protection beyond attorneys and parties to those acting at counsel’s direction in furtherance of litigation. Many courts across the country recognize that investigators, consultants, and other litigation support professionals must be afforded the same protection as counsel when their conduct is tied to advocacy and case development. See Leavitt v. Bickerton, 855 F Supp 455 (D. Mass. 1994), Steffes v. Stepan Co., No. 96 C 8225, 1997 WL 305306 (N.D. Ill. May 30, 1997), Moss v. Parr Waddoups Brown Gee & Loveless, 2012 UT 42 2012), Clark v. Druckman,  624 S.E.2d 864, 870 (2005), and Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608 (Fla.1994), see also, Restatement (Second) of Torts § 586 (1977).

Although the court did not need to decide whether the absolute litigation privilege bars statutory privacy claims, it nonetheless affirmed summary judgment on independent grounds, concluding that the disclosures at issue fell within statutory litigation and investigative exceptions.

The plaintiff’s request for injunctive relief likewise failed as a matter of law. The court noted the absence of any showing of irreparable harm or entitlement to equitable relief, particularly where the underlying conduct was privileged.

Key Takeaways for Professional Liability Defendants

This decision reinforces that Illinois courts continue to interpret the absolute litigation privilege broadly. When conduct or communications are tied to litigation strategy whether undertaken by parties, attorneys, or their agents the privilege remains a powerful defense against attempts to repackage litigation conduct as privacy or tort claims. For professionals operating in the litigation ecosystem, the ruling provides meaningful clarity and protection against after the fact exposure.

For more information, please contact Patrick Eckler at patrick.eckler@fmglaw.com or your local FMG attorney.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.