In Goodman v. Goodman, 2023 IL App (2d) 220086, The Illinois Court of Appeals held that the “absolute litigation privilege” bars claims for intentional infliction of emotional distress (IIED), even when the conduct in question was unreasonable. In Illinois, the absolute litigation privilege protects attorneys and other parties to a lawsuit from actions or statements involving a lawsuit. The privilege applies to proposed or pending litigation, and broadly applies to statements or actions related to the controversy and those that are not confined to a specific issue in the suit. Communications made before, during, or after the litigation are reached by the privilege, and the defendant’s motive or unreasonableness is not relevant. Because the privilege is absolute, no liability will attach when it is triggered, even if it leaves a plaintiff with uncompensated harm.

                In Goodman, husband told a coworker that he was having marital troubles in 2013, including threatening phone calls, and that he feared for the safety of his children. The coworker then hired an investigator without husband’s knowledge, and later hired an attorney to oversee the investigation. Husband became aware of the investigator in 2014, and the investigator’s reports started getting forwarded to husband’s divorce attorney at that time. This investigator worked until 2016, when husband’s divorce attorney hired another investigator, who worked until 2017. During the divorce proceedings, wife found out that husband had paid $1.5 million to investigators to watch her for 12 hours per day.

The trial court for the divorce proceedings found that the surveillance was excessive and unreasonable under the circumstances and entered a plenary order of protection for wife against husband. The court of appeals upheld the order but noted that the affirmation of the protective order does not bar a party in divorce proceedings from hiring an investigator. When the initial order was set to expire, wife filed a motion to extend it and the trial court granted the motion on the belief that husband would immediately hire an investigator. The court of appeals reversed, holding that the trial court’s decision was against the weight of the evidence and that wife did not establish good cause to extend because husband is permitted to hire an investigator for reasonable purposes.

                In 2019, wife filed a five-count complaint against husband for his past surveillance, including one for IIED. Husband moved to dismiss the IIED claim on the grounds of absolute litigation privilege, but the trial court initially rejected the motion. However, the trial court reversed its decision on a motion to reconsider, on the grounds that the applicability of the absolute litigation privilege is a question of law for a judge and not a question of fact for a jury. The trial court then barred wife’s IIED claim under the absolute litigation privilege because the evidence strongly showed that the surveillance was related to future anticipated or pending issues in the divorce litigation. The trial court’s determination that the surveillance was unreasonable, and the fact that husband spent $1.5 million to watch wife for 12 hours a day, were irrelevant because the privilege is absolute and attaches regardless of motive or reasonableness. The Illinois Court of Appeals upheld the trial court. mhaeberle@pattersonlawfirm.com.