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Muro v. Target Corp.

November 28, 2006


The opinion of the court was delivered by: Geraldine Soat Brown, United States Magistrate Judge

Judge Rebecca R. Pallmeyer


Before the court is Plaintiff's Motion to Compel Production of Documents Recently Disclosed as Being Withheld Under a Claim of Privilege ("Pl.'s Mot. Compel"). [Dkt 216.] After reviewing the parties' submissions, as well as conducting an in camera inspection of the 89 documents the defendants withheld from discovery pursuant to the attorney-client privilege, the court grants the plaintiff's motion insofar as the defendants will be required to supplement their privilege log. This Memorandum Opinion and Order sets out the reasons for the court's decision.


The plaintiff filed this lawsuit claiming that the defendants Target Corporation and Target National Bank (collectively, "Target") violated the Truth in Lending Act by systematically converting Target guest cards into unsolicited credit cards and by failing to make mandatory disclosures in a credit card application or solicitation.

Throughout this lawsuit, the parties have spent considerable time and resources engaging in discovery battles. Included in their discovery disputes is Target's refusal to produce certain documents it deems are privileged attorney-client communications. Following the plaintiff's fourth motion to compel production of documents [dkt 157], by Minute Order dated December 22, 2005, this court directed Target to produce a log in compliance with the requirements of Rule 26 as described in Allendale Mut. Ins. Co v. Bull Data Sys., Inc., 145 F.R.D. 84 (N.D. Ill. 1992). [Dkt 187.]

Target produced the privilege log at issue here, identifying 89 documents that are ostensibly protected from discovery. The privilege log lists the document's date, a description and/or title of the document, the document's author, recipient and copyees, the source file from which the document was located, and the privilege claimed. The descriptions in each category are lacking factual detail. For example, with respect to the document's author, recipient and copyees, the log includes only the name, and not the capacity of each individual or whether the individual is an attorney. Under the category of privilege claimed, each document entry simply states "attorney-client" without any explanation of why the document is privileged.

Following a hearing on the motion, the court directed Target to produce copies of the 89 documents identified on the privilege log for an in camera inspection. [Dkt 223.] Target included a cover letter with its production, identifying the names of certain attorneys and a paralegal who are included as either author, recipient or copyee on the log. [Dkt 234.]

The present dispute relates to the 89 documents that the plaintiff sought in discovery, but that Target withheld from production under a claim of attorney-client privilege. The plaintiff challenges Target's assertion of the privilege generally, arguing that Target's log fails to meet the basic requirements of Fed. R. Civ. P. 26(b)(5) and the standard set forth in Allendale, and that Target's "extremely tardy production" of its privilege log precludes it from asserting the privilege. (Pl.'s Mot. Compel at 4-6.) The plaintiff also attacks the application of the privilege to specific documents, arguing that the alleged confidentiality of the communication was compromised because it was shared with a large number of people; that an attorney either was not involved in the communication or was merely copied in the chain of communication; and that the documents and/or the subject matter contained in the documents were already produced thereby waiving the privilege. Id. at 7-11.

Though the parties strongly dispute the date and timeliness with which Target produced the privilege log, the court will focus only on the adequacy of the privilege log and the extent to which the 89 documents fall within the scope of the attorney-client privilege.*fn1


The attorney-client privilege protects confidential communications made by a client to his lawyer "[w]here legal advice of any kind is sought ... from a professional legal advisor in his capacity as such." United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997) (quoting 8 John Henry Wigmore, Evidence in Trials at Common Law § 2292 (John T. McNaughton rev. 1961)). The privilege also extends to statements made by the lawyer to the client where those communications rest on confidential information obtained from the client, or where those communications would reveal the substance of a confidential communication by the client. Rehling v. City of Chicago, 207 F.3d 1009, 1019 (7th Cir. 2000). See also United States v. DeFazio, 899 F.2d 626, 635 (7th Cir. 1990) (privilege applies to communications made by an attorney to a client that constitute legal advice or tend to reveal a client confidence).

The mere assertion of a privilege is not enough. Rule 26(b)(5) requires that the withholding party make the claim of privilege expressly and "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." Fed. R. Civ. P. 26(b)(5). Indeed, a party that seeks to invoke the attorney-client privilege has the burden of establishing all of its essential elements, which have been summarized as follows:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser 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. Evans, 113 F.3d at 1461 (citing Wigmore, Evidence § 2292).

"A claim of privilege cannot be a blanket claim, but must be made and established on a document-by-document basis." Allendale, 145 F.R.D. at 86. To that end, the asserting party must produce a privilege log that identifies for each separate document the following information: the date, the author and all recipients, along with their capacities, the subject matter of the document, the purpose for its production and a specific explanation of why the document is privileged. Id. at 88. This information must be sufficiently detailed to allow the ...

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