Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 3678-Marvin E. Aspen, Judge.
The opinion of the court was delivered by: Evans, Circuit Judge
ARGUED SEPTEMBER 21, 2005
Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.
This appeal stems from a suit by Madison Hobley against the City of Chicago, former Chicago Police Lt. Jon Burge, and other individual defendants. Hobley served 16 years on death row before he was pardoned in 2003. In his § 1983 suit he alleges that Burge and several subordinates tortured and framed him for an arson crime he did not commit. Burge was fired from the police force in 1993 for allegedly torturing a confession from a murder suspect. The question we decide in this interlocutory appeal is whether Hobley may gain discovery of certain documents created and maintained by the law firm Jones Day when it represented the City in the police board proceedings that led to Burge's dismissal.
The seeds for this dispute were sown several months before Hobley filed his suit. In December 2002, a lawyer in the City Corporation Counsel's office notified Jones Day attorney June Ghezzi that a special prosecutor was investigating allegations of torture by Chicago police officers and that a grand jury had subpoenaed documents from the police board proceedings against Burge. Jones Day identified 57 boxes of documents and sent all but 5 of them to Hinshaw & Culbertson, the firm representing the City at that time. Ghezzi informed a Hinshaw attorney that Jones Day was retaining five boxes of documents it considered privileged under the attorney work-product doctrine.
An attorney asserting privilege must timely support that claim with a "privilege log" which describes the nature of each document being withheld. Ghezzi told the Hinshaw attorney to let her know when a privilege log was needed and to inform her before any of the 52 boxes of non-privileged materials were produced to anyone. She would hear nothing further for more than a year. The five boxes of claimed work-product documents at the center of this dispute have never left Jones Day's custody.
Hobley filed this suit, alleging a deprivation of his constitutional rights under 42 U.S.C. § 1983, in May of 2003. Once it got going, the record indicates a history of discovery blunders and resistance on the City's side, prompting several court orders, periodic tongue-lashings from the magistrate judge,*fn1 and at least one set of sanctions against a Hinshaw attorney. In December 2003, the City waived any claims to either attorney-client or work-product privilege. In January 2004, the City produced to Hobley the 52 boxes of police board documents that originally had been assembled for the grand jury investigation. Although the City's attorneys knew Jones Day was still holding five boxes under a claim of privilege, they made no mention of these to Hobley's attorneys, who understandably assumed they were getting all of the "police board documents" they requested, not just some of them.*fn2 Up to this point, no one from the City had told Jones Day about Hobley's lawsuit.
On February 23, 2004, a Hinshaw attorney, Steven Puiszis, called Jones Day's Ghezzi and asked her to prepare a privilege log for the five boxes of documents the firm set aside more than a year earlier. Puiszis later testified that he needed the log to help clear up a different discovery headache-the City's inadvertent production to Hobley of privileged documents unrelated to the police board material-and that he gave Ghezzi no warning that Jones Day's work product was about to take center stage in the vexed saga of this litigation. Representatives from Hinshaw and Jones Day exchanged several other communications during the next several weeks. It remains a point of vigorous dispute whether Jones Day learned enough information during this time to figure out that the withheld police board documents were in play and that it was in danger of losing its privilege claim if it didn't bring the work-product materials to Hobley's attention. Hobley argues that Jones Day knew or should have known about his suit by late February or early March 2004. Jones Day insists it had no knowledge of the specifics of Hobley's litigation or that the documents it was holding might have been implicated in discovery requests and court orders that had been going on for months.
Meanwhile, in the course of briefing yet a different discovery wrinkle, the City disclosed for the first time on March 11, 2004, that its former counsel was holding some police board documents under a claim of privilege. In an order on April 20, 2004, the magistrate judge said the City should have realized those five boxes were encompassed by earlier discovery requests and ordered that they be produced pronto.
This order got Jones Day's attention. Its attorneys filed appearances and a privilege log and asked the judge to reconsider her order. Instead, the judge held an evidentiary hearing focused on what Jones Day had learned about the Hobley litigation during the preceding months and whether it had moved properly to protect its privilege claim. Dismissing as "not credible" the firm's assertion that it was unaware of the Hobley proceedings until it received a copy of the April 20, 2004, order, and clearly exasperated by all the discovery folderol on the City's side, the magistrate judge found, on Jones Day's request for reconsideration, that the firm had withheld the documents without a proper notice of privilege. Hobley v. Burge, 226 F.R.D. 312, 322 (N.D. Ill. 2005). She imposed a sanction of waiver and ordered that the five boxes be produced to Hobley's attorneys. Id. at 323. The district court, finding that the order was not clearly erroneous, affirmed.
We review discovery sanctions for abuse of discretion. Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir. 2003). A district court by definition abuses its discretion when it makes an error of law, and while factual findings are usually reviewed for clear error, findings which are bound up with the application of an inapposite legal standard are subject to closer review. Id.
The purpose of the qualified privilege for attorney work product, which is codified in Federal Rule of Civil Procedure 26(b)(3), is to establish a zone of privacy in which lawyers can analyze and prepare their client's case free from scrutiny or interference by an adversary. In re Special Sept. 1978 Grand Jury II, 640 F.2d 49, 62 (7th Cir. 1980); see also Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). It also prevents a litigant from "taking a free ride on the research and thinking of his opponent's lawyer." United States v. Frederick, 182 F.3d 496, 500 (7th Cir. 1999). A majority of courts have held (and Hobley does not dispute) that the privilege endures after termination of the proceedings for which the documents were created, especially if the old and new matters are related. See In re Grand Jury Proceedings, 43 F.3d 966, 971 (5th Cir. 1994); In re Murphy, 560 F.2d 326, 333-34 and 334 n.13 (8th Cir. 1977).
It is well-established that the work-product privilege may be invoked by either the client or the attorney. In re Special Sept. 1978 Grand Jury II, 640 F.2d at 62; In re Sealed Case, 29 F.3d 715, 718 (D.C. Cir. 1994). An attorney has an independent interest in privacy, even when the client has waived its own claim, as long as invoking the privilege would not harm the client's interests. Restatement (Third) of the Law Governing Lawyers § 90 cmt. c (2000). Although the City has abandoned its own privilege claims, Jones Day's claim is not inconsistent with the City's interests in this litigation.
To begin with the obvious, Jones Day is not a party to Hobley's suit, nor is it representing the City. When documents are sought from a nonparty, the usual method of compelling production is via a subpoena under Fed. R. Civ. P. 45. See Fed. R. Civ. P. 34(c); 9A Charles A. Wright, et al., Federal Practice and Procedure § 2456 ("The subpoena duces tecum is the only way to compel a nonparty to produce documents or other materials.") This includes work product held by a nonparty attorney. See Hickman, 329 U.S. at 504; Fed. R. Civ. P. 45(d)(2). Thus, after the City revealed that five ...