The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
Brett Robenhorst ("Robenhorst"), who suffered a left foot
amputation in the course of his work for Ford Motor Company at
its Chicago Heights, Illinois stamping plant facility, has sued
Siemens Logistics and Assembly Systems, Inc. ("Siemens"), which
had been the source of the automatically guided vehicles ("AGV")
system that was the situs of Robenhorst's misfortune. Siemens has
moved for a protective order as to a portion of Robenhorst's
discovery requests, invoking both the attorney-client privilege
and the attorneys' work product doctrine, and Robenhorst has
promptly filed a responsive memorandum. At the time of
presentment of Siemens' motion on August 17, this Court ruled
orally as to the general principles applicable to the dispute
but the particulars of that application have required this
Court's in camera review of the Siemens documents at issue (a
procedure to which both parties have consented).
Because Siemens had already provided Robenhorst (and has since
provided this Court) with a privilege log describing the three sets of documents that are the subject of its claims for
protection, this memorandum opinion and order will address them
in the same sequence. All three sets of items stem from the work
of investigators Stephfan Sissell ("Sissell") and Jeff Guinn
("Guinn"), who went to the Ford plant the day after the incident
(November 4, 2004) for the purpose of generating a report to
Siemens' in-house counsel David Keller and Jeff Heinze.
Before this opinion addresses the documents themselves, a brief
bit of background as to the operative principles is in order.
Although the most generally accepted version of the
attorney-client privilege would embrace the documents at issue
(see Upjohn Co. v. United States, 449 U.S. 383 (1981), which
provides the definitive teaching as to the scope of the privilege
under federal law; and see generally Edna Epstein, The
Attorney-Client Privilege and the Work Product Doctrine 100-07
(4th ed. 2001)), under Fed.R. Evid. 501 state law provides
the rules of decision in this diversity action.
In that respect the definitive Illinois Supreme Court opinion
in this diversity action, Consolidation Coal Co. v. Bucyrus-Erie
Co., 89 Ill.2d 103, 432 N.E.2d 250 (1982) (somewhat surprisingly
cited as authority in both sides' memoranda), has adopted the
considerably more constricted "control group" standard in
defining the reach of the privilege. And because the request for
the investigation here did not emanate directly from anyone high up in the Siemens corporate hierarchy, it is doubtful
whether the Illinois version of the privilege would extend to the
documents in question. Hence this Court will focus instead on
federal work product principles, the scope of which is dictated
by Fed.R.Civ.P. 26(b)(3) and the caselaw implementing it
(essentially stemming from the seminal decision in Hickman v.
Taylor, 329 U.S. 495 (1947)).
This opinion turns then to the particulars of the dispute,
addressing first the November 8, 2004 memorandum prepared by
Sissell and Guinn and transmitted by them to Siemens' in-house
counsel. Most but not all of that memorandum is purely factual in
nature, containing none of the mental impressions and the like
that are insulated by the work-product doctrine. This Court has
accordingly redacted that document to eliminate the
nondiscoverable portions, and the redacted version is attached to
Next up for consideration are a host of papers described in
Siemens' privilege log as "Handwritten notes of investigation,"
with the further explanation that they are "Notes from
investigation in preparation of the Memorandum Re: Ford Motor Co.
Chicago Stamping Plant." As that description suggests, for the most part those papers are sketchy handwritten notes
(including sketches and diagrams), and in material part either
they are uninformative to third-party readers or, in some
respects, they disclose the kind of insights against which the
work-product doctrine protects. There are some exceptions to that
basis for exclusion from the discovery process, and copies of
those exceptions are also attached to this opinion.
Finally, Siemens' privilege logs lists an unsigned November 10,
2004 memorandum "prepared by Tony Piotrowski" and describes that
memorandum as "Summary of Fiscal evaluation and testing of AGV
bumper." From this Court's review, that memorandum is a
prototypical work-product-protected document. Its statements and
its evaluations are geared to Siemens' potential defenses against
the claim by Robenhorst, and it is simply not feasible to carve
away any limited portion that might arguably be characterized as
factual investigation and therefore found discoverable.
Accordingly no part of that last document is ordered to be
provided to Robenhorst.
Because this opinion is self-contained, having attached the
documents that this Court has found not to be subject to Siemens'
request for a protective order as well as having stated the
reasons for this Court's rulings, it will not be necessary for
Siemens' counsel to tender any independent delivery of the
unprotected documents to Robenhorst's counsel. As the only possible exception, some better quality may perhaps be provided
in terms of the photographs that accompany this opinion. November 8th, 2004
To: Dave Keller & Jeff Heinz
From: Stephfan Sissell & Jeff Guinn
Re: FORD Motor Co. Chicago Stamping Plant
Left Foot amputation Line 191
Location: FORD Motor Co. Chicago Stamping Plant
1000 EAST LINCOLN HIGHWAY
CHICAGO HEIGHTS, IL 60411
The purpose of this trip was to investigate an incident that
occurred at approximately 6:50pm on Wednesday, 11/03/2004 in
which FORD employee (Brett Robenhurst) suffered a left foot
amputation on Line 191.
The accident occurred when the employee was stacking panels at
the west loading station at the end of Line 191. Upon jogging the
last trailer into place the employee failed to jog the trailer to
the yellow line on the floor. AGV #22 in the staging area
released and began to move toward the north loading station. The
front right corner of the second trailer of the advancing train
caught on the right rear corner of the trailer the employee was
loading. The employee had stepped down off the man stand and into
a gap between the man stand and the trailer he was loading. AGV
#22 cleared the trailer that trailer number 2 caught. When ...