United States District Court, N.D. Illinois
February 23, 2004.
PEDRO DEGANTE, on behalf of himself and all other plaintiff's similarly situated known and unknown, Plaintiff,
VINCE LOIACONO and VINCE's "THE PIZZA PEOPLE" #1, INC., Defendants
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, on behalf of himself and all other plaintiffs similarly
situated, known and unknown (hereinafter referred to as plaintiffs),
brought this action alleging violations of the Fair Labor Standards Act,
29 U.S.C. § 201 et seq., and the Illinois Minimum Wage Law, 820 ILCS
105/1 et seq., arising from defendants' failure to pay overtime wages.
Plaintiff filed a motion to compel disclosure of certain conversations
relating to payroll records. For the following reasons, plaintiff's
motion is granted.
Plaintiffs allege that defendants failed to pay their employees
overtime wages even though they qualified for such benefits and regularly
worked over 40 hours per week. During the initial discovery phase,
plaintiffs sought to obtain defendants* payroll records and related
documents. They learned that defendants had left the documents at their
business address when they closed in April 2002, and that the landlord
had subsequently thrown them away. After the close of discovery and the
filing of plaintiffs' motion for summary judgment,
plaintiffs learned that defendants may have had knowledge of claims for
failure to pay overtime as early as December 2001. Plaintiff's believed
that this made the disappearance of the relevant records appear
suspicious and filed a motion to reopen discovery on that issue which was
granted on November 18, 2003.
Plaintiff's then filed a second set of discovery requests seeking,
among other things, information about conversations between defendant
Vince Loiacono and his former attorney, Frank Savaiano, concerning the
potential claims. Defendants admit that Loiacono and Saviano spoke about
the claims by letter, in person, and over the phone, on at least a few
occasions, but refuse to disclose the substance of the communications,
citing the attorney-client privilege. The parties have resolved a number
of related discovery issues and the sole remaining subject of this motion
1s defendants* assertion of that privilege and the scope of its
In order to encourage the free flow of information between attorneys
and clients, communication by a client to an attorney is deemed
privileged if the client has a reasonable expectation of privacy.
Ohio-Sealy Mattress Mfg. Co. v. Kaplan, 90 F.R.D. 21, 28 (N.D Ill.
1980). Because the privilege restricts full and free discovery, it must
be strictly applied, protecting only those communications that would not
likely have been made in the absence of the privilege. Id. It does not,
however, confer a privilege on the underlying Information. Thomas &
Betts Corp, v. Panduit Corp., 1996 WL 480217, *1 (N.D. Ill. 1996).
Defendant Loiacono knew something about the potential claims by
plaintiffs before he left the employment records at the business.
Plaintiff's seek to discover exactly what he knew
and learn what his state of mind was when leaving the documents behind.
They are clearly entitled to do so, as this information is not protected
simply because it was learned during a conversation with an attorney.
Disclosure of the letter and answers to the interrogatories are therefore
required. To the extent that defendant received actual legal advice,
separable from factual information, this advice may be redacted from the
letter, subject to the limitations of the crime-fraud exception. See In
re Feldberg, 862 F.2d 622, 625-26 (7th Cir. 1988).
For the foregoing reasons, plaintiffs motion to compel is granted.
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