The opinion of the court was delivered by: RUBEN CASTILLO, District Judge
MEMORANDUM OPINION AND ORDER
This opinion addresses the Government's motion in limine
requesting a ruling on whether ninety-one communications are protected by
the attorney-client privilege.*fn1 (R. 243-1.) In September 2003,
Defendant Michael Segal gave the Government a log identifying
approximately 13,000 seized electronic communications that he claims are
privileged. The Government created a "taint team" of prosecutors who are
screened off from the prosecution team. The taint team reviewed most of
the 13,000 alleged privileged communications to determine the validity of
Defendants' claims. The taint team identified ninety-one communications
that it asserts are not attorney-client privileged and requested that the
Court review these communications in camera. After reviewing
these ninety-one communications, we partially grant and partially deny
the Government's motion in limine. (R. 243-1.)
I. Attorney-Client Privilege
The attorney-client privilege prohibits the compelled disclosure of
"confidential communications between a client and an attorney for the
purpose of obtaining legal advice." Denius v. Dunlap, 209 F.3d 944, 952 (7th Cir. 2000). The
privilege applies to statements made by a client to his lawyer and
responsive statements made by the lawyer where the responses "rest on
confidential information obtained from the client . . . or where those
communications would reveal the substance of a confidential communication
by the client." Rehling v. City of Chi., 207 F.3d 1009, 1019
(7th Cir. 2000) (internal citation omitted); see also Nedlog Co. v.
ARA Servs., Inc., 131 F.R.D. 116, 117 (N.D. Ill. 1989) ("What is
entitled to protection is really limited to the communication of
confidences from client to lawyer, whether any such confidences (or
sometimes the fact that confidences have been communicated) is disclosed
in a client-authored document or a lawyer-authored response."). The
privilege is strictly construed because it excludes relevant information.
In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000).
The attorney-client privilege only shields communications that were
intended to be confidential, so communications made to an attorney in the
presence of a third party or made with the intent that they will be
disclosed to a third party are not privileged. United States v.
Evans, 113 F.3d 1457, 1462 (7th Cir. 1997); United States v.
White, 950 F.2d 426, 430 (7th Cir. 1991). The Court's privilege
determinations are reviewed under the clearly erroneous standard.
Rehling, 207 F.3d at 1019.
Under the crime-fraud exception, communications that would otherwise be
protected by the attorney-client privilege lose their protected status if
they were "`made for the purpose of getting advice for the commission of
a fraud' or crime." United States v. Zolin, 491 U.S. 554, 563
(1989) (declining, however, to determine the "quantum of proof necessary
ultimately to establish the applicability of the crime-fraud exception").
Once the party arguing for the crime-fraud exception has provided prima
facie evidence (evidence sufficient to require an explanation) that a party sought legal advice in order to commit a fraud or
crime, the Seventh Circuit requires the party asserting the privilege to
satisfactorily explain why it is entitled to the privilege. United
States v. Davis, 1 F.3d 606, 609 (7th Cir. 1993); In re
Feldberg, 862 F.2d 622, 626 (7th Cir. 1988); see also Clark v.
United States, 289 U.S. 1, 15 (1933) (requiring the party
challenging the assertion of privilege to provide evidence that gives
"colour to the charge" and establish that its claim "has some foundation
in fact"); In re Grand Jury Proceedings (Gregory P. Violette),
183 F.3d 71, 78 (1st Cir. 1999) (summarizing standards used by various
circuit courts). The Court's crime-fraud determinations are reviewed
under an abuse of discretion standard. Davis, 1 F.3d at 609.
A party can only assert the attorney-client privilege if it sought
legal advice on its own behalf. For example, a corporation cannot assert
a claim of privilege when one of its officers sought personal legal
advice, even if that officer sought it from the corporation's general
counsel. See United States v. Walter, 913 F.3d 288, 392 (7th
Cir. 1990). Similarly, a trustee cannot assert the attorney-client
privilege against trust beneficiaries if he sought legal advice solely in
his capacity as trustee for the benefit of the beneficiaries. See
United States v. Mett, 178 F.3d 1058, 1064 (9th Cir. 1999). Under
these circumstances, the trustee lacks standing to claim that a
communication is protected by the attorney-client privilege.
II. Attorney Work Product Doctrine
The attorney work product doctrine prohibits the compelled disclosure
of documents created by an attorney in anticipation of litigation.
United States v. Nobles, 422 U.S. 225, 238 (1975). This
protection disappears, however, if at the time the document is created
the prospect of future litigation was remote. Binks Mfg. Co. v. Nat
`l Presto Indus., Inc., 709 F.2d 1109, 1118 (7th Cir. 1983). Instead, the work product doctrine applies only
when there was an "identifiable prospect of litigation (i.e., specific
claims that have already arisen) at the time the documents were
prepared." Fox v. Cal Sierra Fin. Servs., 120 F.R.D. 520, 525
(N.D. Cal. 1988); see also Scruto v. Commonwealth Edison Co.,
No. 97 C 7508, 1999 WL 35311, at *2 (N.D. Ill. Jan 11, 1999) (finding
that an investigation by a governmental agency presents more than a
remote prospect of future litigation).
Whether a communication is attorney-client privileged can only be
determined on a communication-by-communication basis. The Government
challenges Defendants' claim of privilege with respect to ninety-one
communications. The Government's challenges can be divided into four
categories: (1) communications that are not attorney-client
privileged;*fn2 (2) communications that are subject to the crime-fraud
exception to the attorney-client privilege;*fn3 (3) communications to
which Defendants lack standing to assert the attorney-client
privilege;*fn4 and (4) communications to which a former Near North
executive, Jeffrey Ludwig, waived any claim of privilege.*fn5 Defendants claim that eighty-eight of these
communications are either attorney-client privileged or contain attorney
work product.*fn6 Defendants provided a specific explanation for their
privilege claims, but they only responded generally to the Government's
crime-fraud exception and standing arguments. Defendants withdrew their
privilege claim with respect to three communications: documents 26, 61,
and 76 (A170, A176; A322-A323; A419). We have reviewed each communication
individually and considered every challenge raised by the Government as
well as Defendants' specific and general responses.
I. The Attorney-Client Privilege
The Government first alleges that many of the ninety-one communications
do not qualify for protection under the attorney-client privilege.
Recognizing that the attorney-client privilege should be strictly
construed, we have striven to permit disclosure of all information that
would not reveal confidential information that Defendants provided to
their attorneys for the purpose of obtaining legal advice. We used a
broad definition of confidential information and attempted to provide
consistent, clear-cut explanations whenever we determined that a
communication was not privileged in order to provide some certainty to
this fact-intensive analysis. See Upjohn Co. v. United States,
449 U.S. 383, 393 (1981) ("An uncertain privilege, or one which purports
to be certain but results in widely varying applications by the courts,
is little better than no privilege at all.").
One challenge to our privilege analysis is that the expanded role of
the corporate general counsel has blurred the line between business and
legal advice. A prudent corporation will seek legal advice with respect to most corporate decisions, but the
inclusion of general counsel does not transform all business discussions
into attorney-client privileged communications. Id.
Additionally, the rise of e-mail as the primary mode of corporate
communication permits the broad dissemination and near-complete
documentation of corporate ...