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TREPANIER v. CHAMNESS

October 12, 2005.

LIONEL TREPANIER, KURT LESLIE, SHEILA MULVEY-TATORIS, THE SOUTH METRO GREENS, and THE CHICAGO GREENS/GREEN PARTY USA, Plaintiffs,
v.
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.

  DISCUSSION

  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).

  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.

  C. Waiver

  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 ...


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