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Howell v. Joffe

April 11, 2007

ANDREW HOWELL, PLAINTIFF,
v.
WILLIAM JOFFE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Before me are several motions that require resolution. First, defendants St. Mary's Catholic Church and Saint Mary's School (collectively "St. Mary's"),*fn1 Monsignor James McLoughlin ("McLoughlin"), the Catholic Diocese of Rockford (the "Diocese"), and Monsignor David Kagan ("Kagan") have moved for a protective order pursuant to Federal Rule of Civil Procedure 26(c).*fn2 These same defendants have also filed a motion pursuant to Federal Rules of Civil Procedure 12(b)(6), 12(c) and 9(b) to dismiss Counts V, VII, VIII and X of Howell's complaint. Finally, defendants Hinshaw & Culbertson, LLP ("Hinshaw") and Ellen Lynch ("Lynch") have brought their own motion to dismiss Counts VII, VIII and IX of Howell's complaint under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, I conclude that, while a portion of the voicemail recording is not protected by attorney-client privilege, the portion at issue in this litigation is. Based on that finding of privilege I dismiss Count VII of Howell's complaint. Considering defendants' motions to dismiss, and setting aside Count VII, which is dismissed due to my finding of privilege, I grant their motions to dismiss Counts V, VIII, IX and X.

I. Facts Relevant to All Motions

The following facts are relevant to all three motions now before me: Howell's complaint alleges that between 1976 and 1979, when he was a child, defendant William Joffe ("Joffe") (who has not yet had an appearance filed on his behalf or otherwise participated in the case) sexually abused him. At that time, Joffe was a priest associated with St. Mary's. Howell also alleges that Lynch, an agent or employee of Hinshaw, contacted him in April of 2004 along with Kagan. Howell contends that Kagan and Lynch left him a voicemail message with "rude, derogatory, inflammatory, and inappropriate comments" about Howell and about "other victims who had experienced sexual assault and abuse" by Joffe. Howell alleges that as a result of this voicemail he suffered severe emotional distress. He has brought numerous claims, including claims for negligent and intentional infliction of emotion distress caused by the voicemail message.

After Lynch and her firm, co-defendant Hinshaw, filed a motion to dismiss, among others, these infliction of emotional distress claims, this court questioned the parties about the actual content of the voicemail recording. Howell responded by providing this court, in camera, an audio recording and transcript prepared by a professional court reporter purporting to document the voicemail message at issue; it is these materials for which defendants seek a protective order. In their motion defendants appear to concede that the audio recording does contain a message left by Lynch and Kagan for Howell, although defendants generally dispute the accuracy of plaintiff's transcription of the recording.*fn3

Based on this court's review of the recording, the audio recording appears to contain three separate messages for Howell. The first message is from a caller identifying himself as Monsignor Jim McLaughlin. Defendants' motion does not assert any privilege over this specific message. The second message is a message to Howell from a caller identifying herself as Lynch. In the message, Lynch identifies herself as associated with the Diocese and requests to speak with Howell. Defendants' motion also does not assert any privilege over this specific message.

The third message, however, begins as a message to Howell from a caller identifying herself as Lynch; defendants acknowledge in their motion that this is Lynch speaking. Lynch states that she is "getting back" to Howell and asks him to call her. At this point, a "clicking" sound is heard on the recording. Lynch then converses with an unidentified male voice; defendants' motion asserts that this voice is Kagan's. Lynch and Kagan comment about the characteristics of Howell's voicemail recording and Kagan expresses an opinion about Howell's vocal characteristics. The two then discuss how Howell compares to other people who have made allegations of abuse against the Diocese. Finally, Kagan expresses an opinion about the type of victims that Joffe allegedly targeted. The conversation then turns to other topics that appear to relate to other claims or other litigation against the Diocese, and Lynch asks some questions and further converses with Kagan about those unrelated issues. The recording then ends.

In support of their motion for a protective order, defendants have submitted an affidavit from Kagan and an affidavit from Lynch. In Kagan's affidavit he avers that in 2004 he was an ordained priest in the Diocese. As part of his duties he analyzed complaints or allegations of misconduct against individuals associated with the Diocese, and met with the Diocese's legal counsel (at that time Lynch) to discuss legal claims against the Diocese. In evaluating sexual misconduct claims, Kagan avers that he would "consider the similarities, if any, between the claims made by various claimants concerning the same person" and would "ask Diocesan Counsel for input and impressions concerning similarities, if any." According to his affidavit, on April 27, 2004, he heard Lynch leave a message for Howell, and after he believed that Lynch had hung up the telephone receiver, he "voiced his impressions about [Howell's] vocal characteristics and other aspects of the message, including the music in the background of the message." Then, Kagan avers Lynch "provided her impressions about the similarities, if any, in the claims for sexual misconduct alleged to have been committed by the same person against minors who were now reporting such conduct as adults." Kagan's affidavit states that Kagan and Lynch then discussed other pending and potential claims against the Diocese.

In Lynch's affidavit, she states that in 2004 she worked as an attorney with Hinshaw, and one of her clients was the Diocese. As counsel for the Diocese she regularly consulted with Kagan regarding potential and pending civil claims. On April 27, 2004, she avers that she had a meeting with Kagan to discuss claims; Kagan requested the meeting to "provide a status and strategy report." Kagan avers that after she left a telephone message for Howell she intended to end the call, but the telephone connection did not disconnect because she had unknowingly placed the receiver on the phone incorrectly. At that time, she conversed with Kagan "in evaluation of [Howell's] allegations including responding to [Kagan's] comments and impressions about the type of boy the accused priest might have targeted based on the similarities between [Howell] and other victims of the accused priest" as well as about other claims of sexual misconduct and the status of discovery in other pending lawsuits against the Diocese. Kagan's affidavit further states that she was unaware that the line was still connected during the call until August 9, 2004, when Howell's counsel contacted her and told her that he had an audio tape of the conversation. She says that the same day she contacted Howell's counsel, told him that the conversation was protected by attorney-client privilege, and demanded the return of any copies of the conversation.

II. Motion for a Protective Order

I first address defendants' motion for a protective order. Defendants' motion seeks a declaration that the conversation between Lynch and Kagan, as captured by the audio recording and transcript described above, is protected by the attorney-client privilege, and an order that these materials be returned to the defendants and that Howell be prohibited from referring to or relying upon such materials. For the following reasons, I conclude that a portion of the conversation is protected by attorney-client privilege. Based on this finding I dismiss Count VII of the complaint.

A. Standard for Applying the Attorney-Client Privilege

Where, as here, a district court exercises diversity jurisdiction over a state law claim, the court should apply the law of privilege that would be applied by the courts of the state in which it sits. See Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1097 (7th Cir. 1987) (citing FED. R. EVID. 501). Illinois law defines attorney-client privilege 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,*fn4 (6) are at his instance permanently protected (7) from disclosure by ...


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