1990 U.S. Dist. LEXIS 5466, No. 87 C 10983 at *6 (May 3, 1990).
The work-product doctrine is "distinct from and broader than the attorney-client privilege." United States v. Nobles, 422 U.S. 225, 238 n. 11, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1974). It developed to protect the work of an attorney from encroachment by opposing counsel. Binks Manufacturing Co. v. National Presto Indus., 709 F.2d 1109, 1118 (7th Cir. 1983). It consists of a mutli-level protection whereby that information most closely related to an attorney's litigation strategy is absolutely immune from discovery, while that information with a more tenuous relationship to litigation strategy might be available in circumstances evincing a substantial need or undue hardship on the part of the discovery proponent. International Surplus Lines Ins. Co. v. Willis Corrom Corp., 1992 U.S. Dist. LEXIS 17332, No. 91 C 6057 at *11-12 (November 10, 1992).
The threshold determination in a case involving a claim of work-product privilege is whether the material sought to be protected was prepared "in anticipation of litigation." Binks, 709 F.2d at 1118. It has been summarized that in order to establish work-product protection for a document, the discovery opponent must show that "the primary motivating purpose behind the creation of a document or investigative report must be to aid in possible future litigation." Id. at 1119 (quoting Janicker v. George Washington University, 94 F.R.D. 648, 650 (D.D.C. 1982). The documents must have been prepared because of the prospect of litigation. Id. at 1120 (citing 8 Wright & Miller, Federal Practice & Procedure: Civil § 2024). The work-product doctrine does not extend to every communication by an attorney that may concern litigation in some way. The communication must be made as part of the adversary process. Greer Properties, Inc. v. LaSalle Natl. Bank, 1990 U.S. Dist. LEXIS 5466, No. 87 C 10983 at *7 (May 3, 1990).
Incredibly, in its brief in opposition to Dawson's motion to compel discovery, New York Life does not affirmatively assert that the materials requested by Dawson were made in anticipation of litigation. Perhaps the reason for the omission is that there is simply no litigation to attach to these materials. The purpose of the communications from the attorneys to Kane, Gammill, Paul, and Frazier was to inform them of what had already occurred in the Hernandez case. Similarly, the information transmitted to Galler was to be used as an aid in completing the Amended Form U-5. There is no evidence that the motivating purpose behind the preparation of the documents was to aid in possible future litigation. The case would be different if it were shown that the documents were prepared to aid in possible future litigation of Dawson (or anybody else for that matter). However, because New York Life has not proven this to be the case, the Court holds that the work-product doctrine does not apply to the requested materials.
In its brief in opposition to Dawson's motion to compel, New York Life argues that the materials were properly prepared in connection with the Hernandez litigation. See Defendants' Opposition to Plaintiff's Motion to Compel Discovery at 16. New York Life states that "although the Hernandez litigation was settled in May 1993, the materials prepared in connection with that litigation are protected..." Def.'s Opposition at 16 n. 8. The Court finds two flaws with this argument. First, it cannot be said that the materials were prepared for the Hernandez litigation. Although the materials in question had the Hernandez litigation as its subject matter, it is obvious that these materials were not meant to aid in the adversarial process. The materials were simply meant to provide factual information to New York Life employees about the Hernandez litigation. Second, the cases cited by New York Life in support of its position envisioned factual circumstances that are dissimilar to the present situation. The cited cases visualised a factual situation where there is a past litigation and a present litigation and the information at issue was prepared for the past litigation. See Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 25, 76 L. Ed. 2d 387, 103 S. Ct. 2209 (1983) ("The literal language of [Rule 26(b)(3)] protects materials prepared for any litigation or trial as long as they were prepared by or for a party to the subsequent litigation. " (Emphasis added); Clark v. City of Munster, 115 F.R.D. 609, 614 ("The work product privilege may be claimed in a related proceeding even if the litigation for which the file was created has been terminated.") (Emphasis added). The present case simply does not fit into the factual situation outlined above. While the Hernandez case could be viewed as the "past litigation," the Court has already held that there was no pending litigation nor identifiable prospect for future litigation at the time the disputed documents were prepared. Therefore, the Court cannot accept New York Life's overly broad argument and holds that the materials requested by Dawson do not fall under the work-product doctrine.
III. Implied Waiver
Although the Court has already held that the attorney-client and work-product privileges do not apply to the materials requested by Dawson, we will briefly analyze the implied waiver argument proferred by Dawson.
Dawson argues that in order to prove that the qualified privileges asserted by New York Life were abused, it has the burden of showing that New York Life had "a direct intention to injure another, or ... a reckless disregard of the defamed party's rights and the consequences that may result to him..." See Dawson's Memorandum of Law [Corrected] in Support of his Motion to Compel Discovery at 20 (citing Kuwik v. Starmark Star Marketing & Admin., Inc., 156 Ill. 2d 16, 30, 619 N.E.2d 129, 135-36, 188 Ill. Dec. 765 (Ill. 1993). Dawson argues that in order to meet its burden, he must be allowed to learn about what the New York Life attorneys told its employees about the Hernandez trial.
To waive the attorney-client privilege by "voluntarily injecting" an issue into a case, a defendant must do more than merely deny a plaintiff's allegations. The holder must inject a new factual or legal issue into the case. Most often, this occurs through the use of an affirmative defense. See Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1098 (7th Cir. 1987) (noting that while the assertion of an affirmative defense might be found to be an implied waiver, a defendant's mere denial of a plaintiff's claim will not amount to a waiver). New York Life argues that it has merely denied wrongdoing through its assertion of qualified privileges. It then cites In Re International Harvester's Disposition, 666 F. Supp. 1148, 1151 (N.D. Ill. 1987), for the proposition that a mere denial of wrongdoing does not amount to an implied waiver. This argument cannot be accepted. The assertion of a qualified privilege is not simply a denial of a plaintiff's claim. Qualified privilege is an affirmative defense to a defamation claim. Babb v. Minder, 806 F.2d 749, 753 (7th Cir. 1986). Furthermore, it is the nature of an affirmative defense to raise a "matter outside the scope of the plaintiff's prima facie case." Lorenz, 815 F.2d at 1098 (citing 2A J. MOORE, Moore's Federal Practice P 8.19  (2d ed. 1984)). Therefore, the Court finds that New York Life has "voluntarily injected" the issue of qualified privilege into this case.
Ultimately, the Court is influenced by the two cases relied upon by Dawson in support of its position: Southwire Co. v. Essex Group, Inc., 570 F. Supp. 643 (N.D. Ill. 1983) and McLaughlin v. Lunde Truck Sales, Inc., 714 F. Supp. 916 (N.D. Ill. 1989). In Southwire, the defendant (Essex) asserted estoppel as a defense to a patent infringement suit. Essex argued that it took detrimental action in reliance on the plaintiff's inaction in enforcing its patent, and that as a result of the plaintiff's previous failure to enforce, the plaintiff was estopped from bringing suit. The plaintiff sought discovery of Essex's communications with its attorney to show that Essex in fact relied on the advice of counsel instead of plaintiff's inaction. In McLaughlin, the Department of Labor ("DOL") sued Lunde for willful violation of the Fair Labor Standards Act ("FLSA"). Lunde asserted the affirmative defense of good faith reliance on DOL opinions and representations. DOL sought discovery of communications between Lunde and his attorney to show that he in fact relied on the advice of his counsel rather than any DOL representations. In both cases, the requested materials were held to be discoverable on the basis of implied waiver. As Dawson pointed out in his motion to compel, "the substantive law entitled plaintiff to discovery of defendants' knowledge to refute defendants' assertion of "good faith" defenses; there was record evidence that defendants relied on attorney communications in furtherance of their underlying activity; and permitting the defendant to hide behind the privilege under such circumstances was grossly unfair." See Dawson's Memorandum of Law in Support of his Motion to Compel Discovery at 24. The fact that these circumstances are present in the case at bar persuades us to follow Southwire and McLaughlin and hold that New York Life has waived its privileges by asserting the qualified privilege defenses.
New York Life argues that the present case is distinguishable from Southwire and McLaughlin because it has not made any representations about the advice of counsel to establish its affirmative defenses. The Court disagrees with this argument. All of the employees at issue in this matter state in their depositions that they in fact did rely on the factual information contained in the attorney communications that Dawson seeks to compel here. Accordingly, the Court holds that New York Life has waived its attorney-client and work-product privileges with respect to the materials requested by Dawson.
Based on the foregoing reasons, the motion of plaintiff Ronald D. Dawson is granted with respect to the materials requested in Dawson's Memorandum of Law [Corrected] in Support of his Motion to Compel Discovery.
Judge Ruben Castillo
September 29, 1995