The opinion of the court was delivered by: MARIA VALDEZ, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Defendants in this instant matter invoke privilege on a limited
number of documents sought in discovery. In support of their
claims of privilege, defendants submitted a privilege log on June
22, 2005. Review of the log led this Court to conclude that the
defendants had neither complied with Allendale Mutual Insurance,
Co. v. Bull Data Systems, 145 F.R.D. 84, 88 (N.D. Ill. 1992),
nor carried their applicable burdens. See, e.g., United States
v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983) (citing United
States v. First State Bank, 691 F.2d 332 (7th Cir. 1982))
(placing burden on party seeking to invoke attorney-client
privilege as one where they must establish all essential elements
"on a question-by-question or document-by-document basis"); Caremark, Inc. v. Affiliated Computer Servs., Inc.,
195 F.R.D. 610, 613-14 (N.D. Ill. 2000) (citing 8 Wright, Miller & Marcus,
Federal Practice and Procedure § 2024 (2d ed. 1994)) (outlining
a three-part test a party must carry to seek shelter under the
work product doctrine).
This Court did, however, allow defendants another bite at the
apple and on August 29, 2005, defendants re-executed their
privilege log in support of two privilege claims: (1)
attorney-client privilege; and (2) the work product doctrine. On
September 16, 2005, plaintiffs responded. What follows below are
the Court's rulings as to each document submitted in camera.
A. Attorney-Client Privilege
The purpose of the attorney-client privilege is "to encourage
full and frank communication between attorneys and their
clients." Upjohn v. United States, 449 U.S. 382, 389 (1981)
(citation omitted). The Seventh Circuit has construed the scope
of this privilege to be narrow, "[a]s it is in derogation of the
search for truth." In re Walsh,
623 F.2d 489, 493 (7th Cir.)
(citing United States v. Nixon,
418 U.S. 683, 710 (1974)),
cert. denied,
449 U.S. 994 (1980). As such, the established
elements of this narrow privilege, according to the Seventh
Circuit, are as follows:
(1) Where legal advice of any kind is sought (2) from
a professional legal advisor 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 by the legal adviser, (8) except the
protection be waived.
Radiant Burners, Inc. v. Am. Gas Ass'n,
320 F.2d 314, 319 (7th
Cir.) (en banc) (adopting Wigmore's formulation), cert. denied,
375 U.S. 929 (1963). As this privilege is narrow, there are parameters that guide
the determination as to which communications between attorneys
and clients are covered.
*fn1 With regard to
client-to-attorney communications, the privilege "protects only
those disclosures necessary to obtain informed legal advice which
might not have been made absent the privilege." IBJ Whitehall
Bank & Trust Co. v. Cory & Assocs., Inc., No. 97 C 5827, 1999 WL
617842, at *2 (N.D. Ill. Aug. 12, 1999) (internal quotations
omitted) (citing In re Walsh, 623 F.2d at 494). Nor are all
attorney-to-client communications automatically privileged.
Courts recognize attorney-to-client communications as privileged
under two circumstances: (1) "if they constitute legal advice;"
or (2) "tend directly or indirectly to reveal the substance of a
client confidence." United States v. Defazio,
899 F.2d 626, 635
(7th Cir. 1990) (citations omitted). See also Harper-Wyman Co.
v. Connecticut General Life Insurance Co., No. 86 C 9595, 1991
WL 62510, at *3 (N.D. Ill. Apr. 17, 1991).
The work product doctrine, announced in Hickman v. Taylor,
329 U.S. 495 (1947), and codified as Rule 26(b)(3) of the Federal
Rules of Civil Procedure, protects from disclosure otherwise
discoverable documents. The doctrine shields documents and
tangible things "prepared in anticipation of litigation or for
trial by and for another party or by or for that other party's
representative (including the other party's attorney, consultant,
surety, indemnitor, insurer, or agent). . . ." Fed.R.Civ.Pro.
26(b)(3). The protection exits because "it is essential that a lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel."
Hickman v. Taylor, 329 U.S. 495, 510 (1947).
A party seeking the protection of the work product doctrine
must make a showing, consistent with Rule 26(b)(3), that the
materials in question are: (1) documents and tangible things; (2)
prepared in anticipation of litigation or trial; and (3) by or
for a party or by or for a party's representative. Caremark,
Inc., 195 F.R.D at 613-14. To rebut, the party seeking
disclosure of the materials in question must show: (1)
substantial need; and (2) inability to obtain the substantial
equivalent of the information without undue hardship. Id. at
614 (citation omitted). However, even if the party opposing
privilege is successful in this showing, attorney opinion work
product is still shielded as Rule 26(b)(3) affords heightened
protection to a lawyer's mental processes. Id.
Both privileges, attorney-client and work product, can be
waived. Waiver for each is triggered by disclosure of the
communication/document that is inconsistent with the purpose
underlying the respective privilege. With regard to
attorney-client privilege, voluntary disclosure by the client,
inconsistent with the confidential relationship waives the
protection. Wsol v. Fiduciary Mgmt. Assocs., Inc., No. 99 C
1719, 1999 WL 1129100, at *6 (N.D. Ill. Dec. 7, 1999) (citation
omitted). As to work product, waiver occurs only if the
disclosure to a third party "is inconsistent with the maintenance
of secrecy from the disclosing party's adversary." Trustmark
Ins. Co. v. General & Cologne Life Re of Am., No. 00 C 1926,
2000 WL 1898518, at *4 (N.D. Ill. Dec. 20, 2000) (citations
omitted). However, sharing work product with another party that
has a "common interest" is not inconsistent with the adversarial
system, IBJ Whitehall Bank, 1999 WL 617842, at *4 (citations
omitted), so long as the information is maintained in secrecy
against the opponent. Bramlette v. Hyundai Motor Co., No. 91 C
3635, 1993 WL 338980, at *3 (N.D. Ill. Sept. 1, 1993) (citation
omitted).
D. Application of Privileges to Privilege Log Entries
Several of the defendants' privilege log entries contain more
than a single document. To minimize confusion, this Court will
only address each individual document within a log entry under a
unique, but related, identifier if necessary.
While unable to disclose the specific facts contained in each
document, the Court finds that Items Nos. 1.a, 2, and 8 are
completely shielded from discovery under both privileges, Items
Nos. 6 and 12 are covered in their entirety by the
attorney-client privilege, and Items Nos. 3, 4, 5, 7.b, 9, 10,
11, 13, 14, and 15 deserving of the full protection of the work
product doctrine. The remaining ...