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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,

The opinion of the court was delivered by: JAMES MORAN, Senior District Judge


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. ยง 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, Page 2 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 protection.


  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 Page 3 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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