United States District Court, N.D. Illinois, Eastern Division
October 12, 2005.
LIONEL TREPANIER, KURT LESLIE, SHEILA MULVEY-TATORIS, THE SOUTH METRO GREENS, and THE CHICAGO GREENS/GREEN PARTY USA, Plaintiffs,
MICHAEL CHAMNESS, individually, and JULIE GENTILE, individually, and officially as Chief Legal Counsel and Manager, Hazardous Materials Compliance & Enforcement Office of the Illinois Emergency Management Agency, and WILLIAM C. BURKE, individually and officially as Director of the Illinois Emergency Management Agency and Chair of the State Emergency Response Commission, Defendants.
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
(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).
B. Work Product Doctrine
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
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 documents Items Nos. 1.b and
7.a are to be disclosed by defendants to plaintiffs as detailed
Privilege Log Entry 1 contains two items: (1) a memorandum
(Item No. 1.a); and (2) case law (Item No. 1.b). For each item,
defendants invoke both privileges. This Court considers the
memorandum and attachments to the memorandum independently as
inspection of the documents reveals that they are not related.
Item No. 1.a: The memorandum from Julie Gentile (Ms. Gentile
or defendant Gentile), then-chief legal counsel for the Illinois
Emergency Management Agency (IEMA), to Mark Novak (Mr. Novak) is marked "Confidential and Privileged
Communication" and discusses strategy in relation to
then-forthcoming filings by plaintiffs. Plaintiffs raise no
objection to the defendants' assertions of these privileges,
(Pls. Resp. to Defs. Priv. Log ¶ 1), and the Court finds Item No.
1.a protected by the attorney-client and work product privileges.
Item No. 1.b: Attached to the memorandum of Item. No. 1.a are
Westlaw versions of case law. They contain no handwritten
markings. Moreover, these cases do not appear to relate to Item
No. 1.a. By their nature, reported decisions are intended to be
neither confidential communications nor the work products of an
attorney. Accordingly, the attached case law could not be covered
under either privilege defendants invoke.
Privilege Log Entry 2 is a February 19, 2003 email
communication from Ms. Gentile to Deborah Simpson (Ms. Simpson),
an assistant attorney general, sent after the commencement of
litigation in this case, discussing legal strategy. Defendants
assert both privileges and dual roles for Ms. Gentile in
connection to privilege log entry 2. As to work product,
defendants point to Ms. Gentile's role as attorney for IEMA. They
also argue that Ms. Gentile adopted the role of agent for IEMA
(client) with regard to their attorney-client privilege claim. On
alternative bases, this Court finds both privileges applicable.
In connection to log entry 2, plaintiffs challenge defendants'
characterization of Ms. Gentile as an attorney for IEMA.
Specifically, plaintiffs draw the Court's attention to defendant
Gentile's answers and objections to plaintiffs' first set of
interrogatories, in which she states that her last day at the
agency was November 26, 2002. (Pls. Resp. to Defs. Priv. Log at
Exh. A ¶ 20.)*fn2 Accordingly, it is clear to the Court that Ms.
Gentile left her IEMA attorney post in late-November 2002.
However, this fact is not fatal to finding for defendants'
At the time the subject of log entry 2 was authored, Ms.
Gentile remained a licensed attorney, albeit not with the state
agency. As a matter of law, attorneys facing a common litigation
opponent, such as Ms. Gentile and Ms. Simpson, may exchange
communications and work product without waiving privilege.
Schachar v. Am. Acad. of Ophalmology, Inc. 106 F.R.D. 187, 191
(N.D. Ill. 1985) (citing United States v. McPartlin,
595 F.2d 1321, 1336 (7th Cir.), cert. denied, 444 U.S. 833 (1979)).
Alternatively, even assuming that Ms. Gentile authored Item No. 2
as a non-attorney, the work product doctrine nonetheless attaches
when a document is prepared in anticipation of trial, as is the
case here, by or for either a party, which Ms. Gentile is, or a
party's representative. See In re Air Crash Disaster at Sioux
City, Iowa, 135 F.R.D. 515, 520 (N.D. Ill. 1990) ("Rule 26
clearly protects party, and not just attorney,
preparation. . . .").
Moreover, under attorney-client privilege, Ms. Gentile's status
as a named defendant and then-client of the Illinois attorney
general's office allows her recorded communications to her
attorney(s) in furtherance of her legal representation to be
privileged. A client-to-attorney communication, as Ms. Gentile's
to the government attorneys in this email, is privileged if
"necessary to obtain informed legal advice." IBJ Whitehall
Bank, 1999 WL 617842, at *2. The Court's review of the email
reveals it contains multiple requests for legal advice tied to
the instant matter. As such, this Court recognizes both
privileges and rejects plaintiffs' objection for log entry 2 as well their objections based on Ms. Gentile's
departure date under log entries 3-5, 9, 11, and 14.
Privilege Log Entry 3 is a memorandum between agency
attorneys, from Ms. Gentile to Jeanne Heaton (Ms. Heaton), IEMA
attorney, dated June 2, 2003. The memorandum is marked
"Confidential and Privileged Communication Prepared in
Anticipation of Pending Litigation." Defendants assert only the
work product privilege. Review of Item No. 3 leads this Court to
conclude the memorandum to be opinion work product. Plaintiffs
object to the application of attorney-client privilege to this
item, (Pls. Resp. to Defs. Priv. Log ¶ 3), but because defendants
do not assert attorney-client privilege, plaintiffs' objection is
Privilege Log Entry 4 is an April 2, 2003 email from Ms.
Gentile to Dave Smith (Mr. Smith), IEMA employee, and Ms. Heaton
with an attached document. Defendants assert that the attachment
is Ms. Gentile's notes detailing a conversation with a Joan Silke
(Ms. Silke), an attorney, regarding plaintiff Kurt Leslie (Mr.
Leslie or plaintiff Leslie). Defendants invoke both privileges as
to the email and attachment. Plaintiffs offer three responses:
(1) Ms. Gentile's late-November 2002 departure from her IEMA
attorney post negated the basis for both privileges, (Pls. Resp.
to Def. Priv. Log ¶¶ 2, 4); (2) distribution to Mr. Smith, a
non-attorney agency employee, waived both privileges, (Id. ¶
4); and (3) attorney-client privilege could not cover Ms. Silke
as she was not a licensed attorney in Illinois, (Id. ¶ 4, Exh.
This Court's review reveals that the email contains Ms.
Gentile's mental impressions in response to the evolving
litigation. It also reveals that the attachment contains Ms.
Gentile's notes from a conversation with Ms. Silke, whom plaintiffs note is
listed on the defense witness list, (Id. ¶ 4), regarding the
instant litigation. As such, the email is opinion work product
and the attached notes are fact work product. Caremark,
195 F.R.D. at 613-14.
Plaintiffs argue that the work product doctrine was waived when
Ms. Gentile disclosed the communication to a third party, Mr.
Smith. (Pls. Resp. to Defs. Priv. Log ¶ 4.) However, waiver is
not proper in this instance as inclusion of Mr. Smith, an
employee of IEMA, is not inconsistent with the adversarial
system, the standard for waiver. See, e.g., IBJ Whitehall Bank,
1999 WL 617842, at *4. As such, the work product doctrine shields
the email and attachment. Accordingly, this Court need not
address defendants' asserted attorney-client privilege and
plaintiffs' remaining varied responses.
Privilege Log Entry 5 is comprised of several documents: (1)
three emails, all dated March 20, 2003, from Ms. Gentile to Mr.
Smith and Ms. Heaton; (2) three versions of an attached letter
regarding the possible disbanding of the Cook County South Local
Emergency Planning Committee (LEPC); and (3) a stand-alone
letter, which appears to be another draft version of the letter.
As to each, defendants invoke both privileges.
The work product doctrine covers documents prepared in
anticipation of litigation by a party's representative, Ms.
Heaton as agency attorney and counsel for director of IEMA, or
the party herself, in this case Ms. Gentile. See, e.g.,
Caremark, 195 F.R.D. at 613-14. Moreover, the distribution to a
third party, Mr. Smith, does not waive the protection as his
inclusion does not strike this Court as inconsistent with the
adversarial system. See, e.g., IBJ Whitehall Bank, 1999 WL
617842, at *4. Accordingly, the documents included in log entry 5
are at the very least covered by the work product doctrine. In so finding, the Court
need not address defendants' other privilege claim.
Privilege Log Entry 6 is comprised of an email, dated March
19, 2003, from Mr. Smith to Ms. Heaton and Michael Chamness,
former deputy director of IEMA and named party to this action,
regarding the possible disbanding of an LEPC. Defendants assert
dual privileges. Below the March 19th exchange is a March 18,
2003 email from Ms. Heaton to Mr. Smith and Ms. Gentile.
Plaintiffs respond that the inclusion of an attorney in the
distribution chain was disingenuous, improperly serving to shield
discoverable evidence. (Pls. Resp. to Defs. Priv. Log ¶ 6.)
Plaintiffs fail to support this bald assertion.
Review of these email exchanges leads this Court to conclude
that the agency employees, attorney and non-attorney alike, and
named defendants to this action were included to carry out legal
advice from the attorney general's office. At the time in
question, named defendants and the agency's interests were
represented by the Illinois attorney general. Privilege for
attorney-to-client communications can be had one of two ways: (1)
the communication constitutes legal advice; or (2) the
communication tends "directly or indirectly to reveal the
substance of a client confidence." Defazio, 899 F.2d at 635.
This Court concludes that the email conversations from March 18th
and 19th do contain restatements of legal advice and if released
they would reveal the substance of client confidence. As such,
Item No. 6 is covered by the attorney-client privilege. Reaching
such a conclusion, this Court need not address the work product
argument proffered by defendants. Privilege Log Entry 7 contains two items for which defendants
invoke work product protection. The first of the pair is a letter
from Mr. Leslie, then-chair of an LEPC, to Ms. Gentile,
then-agency counsel (Item No. 7.a). The second is an attached
draft letter dated August 12, 2002 from Ms. Gentile, as IEMA
attorney, to Mr. Leslie, as LEPC chair (Item No. 7.b). Both the
letter and attached draft contain handwritten attorney notes,
which defendants assert is Ms. Gentile's writing. The
handwritings record her impressions and opinions in connection to
ongoing litigation. Under Scurto v. Commonwealth Edison Co.,
No. 97 C 7508, 1999 WL 35311, at *2 (N.D. Ill. Jan. 11, 1999)
(citations omitted), opinion work product protection is close to
absolute. Thus, this Court finds the written notes to be
Plaintiffs assert that Item No. 7.a was authored by Mr. Leslie,
a named plaintiff, thereby negating any basis for the defense to
claim privilege. (Pls. Resp. to Defs. Priv. Log ¶ 6.) The Court
agrees. As to Item No. 7.a, the defendants are ordered to redact
all handwritten notes and to disclose the redacted document to
plaintiffs. Item No. 7.b, however, remains shielded from
Privilege Log Entry 8 covers two documents and defendants
assert both privileges. The first is a June 14, 2000 letter, from
Ms. Gentile, then-IEMA attorney and representative, to Mary
Nagel, former assistant attorney general, discussing the instant
lawsuit. The other document is a four-page attachment, authored
by Ms. Gentile, again as IEMA attorney and agent, to Mr. Novak,
assistant counsel to the Governor, and dated November 12, 1999.
The attachment discusses the likelihood of the commencement of a
civil action against the state. Plaintiffs concede privilege as to both items, (Pls. Resp. to
Defs. Priv. Log. ¶ 1), and a review of the documents leads this
Court to conclude that both documents are opinion work product
and eligible for coverage under the attorney-client privilege.
Privilege Log Entry 9 is a June 14, 2003 letter from Ms.
Gentile to Ms. Heaton discussing responses to the pending
lawsuit. Defendants assert work product protection. The court
having previously rejected Plaintiffs' objections based on Ms.
Gentile's departure date, concludes that the letter is a
communication between defendant Gentile, a named party and former
counsel to the agency, to her successor as counsel to the agency
discussing legal proceedings. The Court concludes that Item No. 9
is opinion work product and it remains outside the reach of
Privilege Log Entry 10 is an email containing two prior links
in an email chain. The first two email links are dated November
25, 2002 and are communications between Ms. Simpson, with the
attorney general's office, and Ms. Gentile, then-attorney for
IEMA. They discussed legal strategy in connection to pending
litigation. The final link, dated the same day, is a
communication from Ms. Gentile to Anne Dorman (Ms. Dorman), an
agent for IEMA, and Ms. Heaton, IEMA attorney.
Defendants assert both privileges. In response, plaintiffs
contend waiver as third parties were included in the
distribution, (Pls. Resp. to Defs. Priv. Log ¶ 9), and the
"interests of justice" compel disclosure of Item No. 10 as it may
shed light as to the current location of "significant portions of
IEMA/SERC EPCRA LEPC documents [that] cannot be found. . . ."
(Id.). Legal strategies related to the instant case are contained
throughout the volley of the emails making Item No. 10 work
product. Moreover, Ms. Gentile is still covered by the privilege
in her status as a party to the litigation and inclusion as to
the third parties such as Ms. Heaton and Ms. Dorman, agents for
IEMA, does not seem inconsistent with the adversarial system, the
standard for waiver. This Court having found the existence of a
work product privilege, need not address attorney-client
Finally, plaintiffs seek disclosure in the "interests of
justice." The end that plaintiffs seek locating a misplaced box
of agency documents is unlikely to be furthered by disclosure
of the email. Based on the in camera review, the Court
concludes that Item No. 10 makes no specific or remote mention as
to boxes, their location, or other exit details relating to Ms.
Gentile's final days with IEMA.
Privilege Log Entry 11 is a thirteen-page email containing
three email volleys and the text of a draft letter incorporated
into the oldest communication. The email exchanges, dated April
7, 2004, are communications between Laura Stolpman (Ms.
Stolpman), an IEMA attorney, to Ms. Gentile, Kevin McClain, with
IEMA, and Pam Reid, also with IEMA, discussing legal strategy.
Defendants argue that work product protection applies to the
whole of Item No. 11. In response, plaintiffs put forth an
argument against attorney-client privilege, (Pls. Resp. to Def.
Priv. Log ¶ 10), even though defendants do not raise it.
As the email subject matter is tied to the instant case and the
individuals contributing to the email volley are a named
defendant and a party's attorney, the work product doctrine
applies. Moreover, inclusion of third-party agency personnel in
the distribution of the communication does not constitute waiver as long as it is consistent with the
adversarial system, which this Court concludes it was. Thus, Item
No. 11 is sheltered from discovery.
Privilege Log Entries 12 and 13 are not opposed by
plaintiffs. (Pls. Resp. to Defs. Priv. Log ¶ 1.) The Court
accordingly finds that Item No. 12 is protected by
attorney-client privilege and Item No. 13 is covered by work
Privilege Log Entry 14 is a February 19, 2003 email from Ms.
Gentile to Ms. Simpson discussing legal strategy in connection to
the instant action. Defendants invoke the protection of both
privileges. Plaintiffs respond that Ms. Gentile's departure from
IEMA negates the basis for supporting either privilege. (Pls.
Resp. to Defs. Priv. Log ¶ 2.) Under Caremark, parties to an
action, such as defendant Gentile, can author documents in
anticipation of litigation and be covered by the work product
doctrine. Recognizing work product protection for Item No. 14,
this Court will not address defendants' attorney-client privilege
Privilege Log Entry 15 is a three-page email containing the
text of three email volleys circulated on March 17, 2004 between
Ms. Stolpman and Ms. Simpson discussing legal strategy in
connection to plaintiffs' lawsuit. Defendants assert both
privileges, which plaintiffs do not contest. (Pls. Resp. to Defs.
Priv. Log ¶ 1.) The Court finds that the documents are protected
from discovery under the work product privilege. Reaching this
result, this Court will not address defendants' attorney-client
The Court finds that Items Nos. 1.a, 2, and 8 off plaintiffs'
privilege log are protected under both privileges, Items Nos. 6
and 12 are covered by the attorney-client privilege, and Items
Nos. 3, 4, 5, 7.b, 9, 10, 11, 13, 14, and 15 are shielded under
the work product doctrine. As Item No. 7.a is partially covered
by work product, the Court orders disclosure of Item No. 7.a to
plaintiffs after redaction of all handwritten notes, as
articulated above, within 7 days of this order. Similarly, this
Court finds that Items No. 1.b to not be privileged. Accordingly,
Item No. 1.b must also be shared with plaintiffs within 7 days of
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