United States District Court, N.D. Illinois
January 15, 2004.
KEVIN VODAK, et al., individually and on behalf of others similarly situated, Plaintiffs,
CITY OF CHICAGO, et. al., Defendants
The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This is a civil rights putative class action alleging "false
detentions, arrests, imprisonments and injuries sustained by
approximately 800 class members on March 20, 2003 in Chicago, Illinois."
First Am. Cmplt., p. 2. Defendants seek to compel production of
questionnaires completed by potential class members. Plaintiffs claim
these documents are protected from disclosure by the attorney-client
privilege. Defendants contend no attorney-client relationship existed at
the time the questionnaires were completed. For the reasons explained
below, the Court finds that the completed questionnaires are protected
from disclosure by the attorney-client privilege.
On March 20, 2003, thousands of persons gathered at the Federal Plaza
located at Jackson Avenue and Dearborn Street in Chicago to express
concern and protest the commencement of the United States war on Iraq.
Over 500 persons were arrested and approximately 200-300 people were
detained on March 20, 2003. Plaintiffs state that subsequent to the
arrests and detentions, the National Lawyers Guild*fn1 and the attorneys
who are representing Plaintiffs "were inundated with requests for
legal representation in criminal court and a myriad of other inquiries
about their criminal cases, a potential civil rights lawsuit, and other
legal issues relating to the police actions on March 20, 2003."
Plaintiffs' Resp., p. 2. The National Lawyers Guild organized a meeting
at the Chicago Temple Methodist Church for March 30, 2003. Plaintiffs
state that the purpose of the meeting was to "provide legal information
and legal representation if desired, to those people who were arrested or
detained on March 20, 2003." Pls' Resp., p. 2. Approximately 500 persons
attended the meeting.
The lawyers prepared a form questionnaire prior to the meeting. The
questionnaire sought identification information such as name, telephone
number, address, and email address. The questionnaire also asked the
following questions: 1) Do you have a court date? If yes, what is the
date, time, location, and charge. Do you want a lawyer to appear with
you? 2) Were you taken into custody by the police, but released without a
court date? If yes, what was the date and the number of hours held? 3)
Were you prevented from leaving and/or detained out on the street by the
police? If yes, what was the date and the number of hours held? 4)
Identify any persons who saw what happened to you. Plaintiffs explain
that only those who were seeking legal representation or specific advice
were requested to complete the form questionnaire. It was announced at
the meeting that persons could write on the back of the questionnaire if
they had any additional information that they wanted to convey.
Answers to the questionnaire were obtained. Plaintiffs state that the
completed forms were immediately utilized to provide legal representation
in criminal court for the arrestees, commencing on the first court date
of April 1, 2003. Plaintiffs further state that the information contained
on completed questionnaires was kept confidential and provided only to
lawyers who represented the
individuals in court.
Plaintiffs have filed a complaint against the City of Chicago and the
Chicago Police Department seeking certification of a class of protesters
including those who were: 1) taken into custody but released without
being charged with a crime; 2) subjected to unnecessary and/or excessive
force; 3) deprived of personal property; 4) taken into custody based on
associational or expressive principles; and 5) taken into custody and
charged with criminal offenses. Class certification issues are being
litigated and discovery is ongoing. In the course of discovery, a blank
form questionnaire was produced to Defendants. Plaintiffs also produced a
list of protesters who attended the March 30, 2003 meeting. Defendants
now seek to compel production of the completed questionnaires returned to
The federal rules permit "discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any party. . . .
Relevant information need not be admissible at trial if the discovery
appears reasonably calculated to lead to the discovery of admissible
evidence." Fed.R.Civ.P. 26(b)(1). A document is protected from disclosure
by the attorney-client privilege when: 1) legal advice of any kind is
sought 2) from a professional legal adviser in his capacity as such, 3)
the communications relating to that purpose, 4) made in confidence, 5) by
the client, 6) are at his instance permanently protected 7) from
disclosure by himself or the legal adviser, 8) except the protection may
be waived. United States v. White, 950 F.2d 426.430 (7th Cir. 1991). A
party that refuses to disclose information based on a claim of privilege
bears the burden of establishing that the privilege applies. In re Grand
Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000).
With the exception of whether the persons who completed the
questionnaire are to be regarded as clients, Defendants do not dispute
that all of the requirements for the attorney-client privilege have
been established. The purpose of the meeting was to provided legal
advice to protesters. The questionnaires were provided to the lawyers in
their capacity as legal advisors. The questionnaires sought information
related to that purpose such as the particulars of an individual' s
criminal court date. The communications in question were also made in
confidence and under an expectation of privacy. The questionnaire
promises that the information provided will be "held in strict confidence
and used only by the attorneys providing legal representation." There has
been no waiver of the attorney-client privilege.
Defendants argue that the completed questionnaires are discoverable
because no attorney-client relationship existed. The Seventh Circuit has
held that the existence of an attorney-client relationship is not
dependent upon the payment of fees or upon the execution of a formal
contract. Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311,
1317 (7th Cir. 1978). Rather, "[t]he professional relationship for
purposes of the privilege for attorney-client communications `hinges upon
the client's belief that he is consulting a lawyer in that capacity and
his manifested intention to seek professional legal advice.'" Id. at 1319
(quoting McCormick on Evidence (2d ed. 1972), § 88, p. 179).
Applying these guidelines to the facts of this case, Plaintiffs have
established that the persons who completed the form questionnaires
reasonably believed that they were consulting counsel in their capacity
as lawyers and they completed the questionnaire for the purpose of
requesting legal representation. Plaintiffs explain that at the meeting,
only those who were seeking legal representation or specific advice were
requested to complete the form. The form questionnaire expressly states
that it should be completed if a person is "interested in either legal
representation on a criminal charge or to pursue a civil lawsuit." See
Bauman v. Jacobs Suchard. Inc., 136 F.R.D. 460 (holding that
questionnaires returned to the EEOC by prospective claimants in an age
discrimination suit were protected by a de facto attorney-client
privilege where only those who desired to be represented were
asked to complete the questionnaire). Because an attorney-client
relationship existed at the time the questionnaires were completed, they
are protected from disclosure by the attorney-client privilege. See
Connelly v. Dun & Bradstreet. Inc., 96 F.R.D. 339, 342 (D. Mass.
1982) (holding customers of one of defendant's former clients reasonably
regarded a court appointed Customers' Representative as their lawyer
where questionnaires sent to customers prior to the filing of a civil
class action were accompanied by a cover letter indicating that the
Customers' Representative was acting as an attorney representing the
customer's legal interests).
Defendants claim that the form questionnaire assumes that some who
respond will not desire representation and thus, the questionnaire
records which individuals do not want or need the services of the
lawyers. Defendants cite only on the portion of the questionnaire dealing
with court dates for criminal charges. That portion of the questionnaire
asks: "Do you want a lawyer to appear with you? ___ Yes ___ No, I already
have a lawyer or I will use the public defender." The fact that certain
persons who completed the questionnaire may not have sought legal
representation from plaintiffs' lawyers in connection with a criminal
charge does not defeat the privilege. In addition to determining if
persons required criminal representation, the questionnaire also requested
information from individuals seeking civil representation, including
whether they were taken into custody or detained on the street.
Defendants contend that in the "context of class actions,
questionnaires filled out by witnesses and potential putative class
members have not been deemed privileged arid have been discoverable."
Defs' Reply, p. 5. The cases cited by Defendants are easily
distinguishable. In Morisky, et al. v. Public Service Electric and Gas
Co., 191 F.R.D. 419, 424 (D. N.J. 2000), a putative class action,
plaintiffs' attorneys failed to establish that the persons who completed
the questionnaires "were clients or sought to become clients at the time
the employees returned the completed questionnaires." Id. at
423. Similarly, in Hudson v. General Dynamics Corp., 186 F.R.D. 271, 276
(D. Conn. 1999), the district court held that the attorney-client
privilege did not protect initial questionnaire responses by employees who
later retained plaintiffs* attorney as their lawyers because the initial
questionnaires were completed not for the purpose of obtaining legal
advice but solely to serve as witness statements and were completed prior
to the existence of or any attempt by the recipient to create any
attorney client relationship.*fn2 In contrast, the questionnaires in the
instant case were completed by persons seeking legal representation.*fn3
Defendants* remaining arguments do not aid their attempt to discover
the completed questionnaires. Defendants assert that Plaintiffs' counsel
cannot assert the attorney-client privilege over everyone who attended a
public meeting held to gather information from those who allegedly
participated in a protest that took place in Chicago on March 20, 2003.
Defendants misstate Plaintiffs' claim of privilege. Plaintiffs do not
assert the attorney-client privilege on behalf of everyone who attend the
public meeting. Rather, Plaintiffs claim that an attorney-client
relationship existed upon completion of the form questionnaire.
Defendants further argue that because persons who did not protest on
March 20, 2003 could have attended the meeting and filled out a form, the
are not privileged. Defendants are mistaken. The privilege issue
here concerns the communications contained in the questionnaires and not
the communications that occurred during the group meeting. In fact,
deponents have already testified as to what was communicated to the
entire group at the meeting.
Defendants point out that the meeting was held before a class action
was filed. The attorney client privilege covers communications where
"legal advice of any kind is sought" and is not dependent upon the
initiation or contemplation of litigation. White, 950 F.2d at 430.
Defendants also point out that the form questionnaire does not state that
individual responding agree to be represented by the National Lawyers
Guild or any other particular lawyers. The existence of an
attorney-client relationship is not tied to actual employment of the
lawyer. "The fiduciary relationship existing between lawyer and client
extends to preliminary consultation by a prospective client with a view
to retention of the lawyer, although actual employment does not result."
Westinghouse Elec. Corp., 580 F.2d at 1319.
Finally, Defendants argue they have a "substantial need" to determine
who participated in the protest but did not consider themselves detained
by police and it would cause them "undue hardship" to obtain the
information by other means. The "substantial need" and "undue hardship"
exception set forth in Rule 26 applies to the attorney work-product
privilege and not attorney-client information. Scurto v. Commonwealth
Edison Co., 1999 WL 35311, *4 (N.D. Ill. Jan. 11, 1999). Thus, an
assertion of attorney-client privilege may not be overcome upon a showing
of substantial need and undue hardship. Defendants claim that they have a
legitimate interest in discovering the "facts" disclosed in the responses
to the questionnaires. "It is true that only the communications and
advice given are privileged; the facts communicated are still
discoverable if otherwise the proper subject of discovery." Bauman, 136
F.R.D. at 463. Plaintiffs have already provided a list of the names and
addresses of every person who signed in at the meeting. According to
Plaintiffs, Defendants have ample non-privileged opportunities and
avenues to discover who participated in the demonstration but did not
consider themselves detained by the police. At the next status hearing,
counsel shall be prepared to discuss the most appropriate and efficient
avenue for Defendants to discover whatever relevant facts are contained
in the completed questionnaires.
For the reasons explained, Defendants' Motion to Compel production of
completed questionnaires by potential class members is denied.