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Petrovic v. City of Chicago

August 21, 2007


The opinion of the court was delivered by: Magistrate Judge Maria Valdez


Plaintiff brings this Motion to Bar [Doc. No. 76] seeking to prevent two witnesses, a Ms. Howard and a Mr. Corbin, from testifying at trial. Both potential witnesses were present during some of the events which led to this federal lawsuit. Plaintiff seeks to bar these witnesses because the defendants failed to timely disclose the existence of verbatim tape recordings of interviews conducted of these witnesses by defendants' investigator and because defendants failed to timely submit a privilege log.


This case concerns events which occurred at the Funky Buddha Lounge in Chicago (hereinafter "the Funky Buddha"). As its name implies, it appears that the Funky Buddha is a social gathering spot where alcoholic beverages are served. Plaintiff has alleged that while a patron of the Funky Buddha she was a victim of a battery by a bouncer. She further alleges that after calling the police to assist her, she was beaten, called derogatory names relating to her gender and denied medical treatment by the defendants. Defendants have denied the allegations.

The two potential witnesses at issue in this motion were mentioned early on in discovery. Ms. Howard (a Funky Buddha waitress) was listed on both the plaintiff's and defendants' Rule 26(a)(1) disclosures while Mr. Corbin (a Funky Buddha manager) was listed only on defendants' disclosure. Plaintiff initially asked for all witness statements, including recorded statements, in her First Set of Requests to Produce Nos. 18 & 20 dated February 8, 2007. On April 20, 2007, Defendants responded by not objecting to these requests and not identifying any recorded statements.

According to the defendants, their investigator interviewed Ms. Howard on June 6, 2007 and Mr. Corbin on May 9, 2007 and made an audio recording of both interviews. The recordings were made with the permission of Ms. Howard and Mr. Corbin. Defendants assert that while they were aware of the interviews, they were not aware that their own investigator made an audio recording of the interviews. Defendants state that they became aware of the audio recordings during the deposition of Ms. Howard which was conducted by the Plaintiff on July 23, 2007. On July 27, 2007, defendants wrote a letter to Plaintiff's counsel wherein they state that "the recorded statements are protected from disclosure by the work-product privilege." (Defs.' Resp., Ex. C).


Federal Rule of Civil Procedure 26(b)(1) permits the discovery of any matter relevant to the subject matter of the pending action, so long as the information is not privileged, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. The Supreme Court has interpreted relevance broadly to include any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The parties do not dispute the relevancy of the information at issue.

When a party seeks to withhold relevant information due to a claim of privilege, Rule 26 (b)(5) requires that the withholding party make the claim expressly and shall describe the nature of the withheld material so as to enable other party to determine the existence of the privilege. Further, in order to withhold disclosure based on privilege under Rule 26(b)(3) a party claiming protection must satisfy three necessary elements. The material must be: 1) documents and tangible things; 2) prepared in anticipation of litigation or for trial; and 3) by or for a party or by or for a party's representative. Once the protecting party meets this standard, then the burden shifts to the seeking party to overcome the protection by a showing of: 1) substantial need for the materials, and 2) inability to obtain the substantial equivalent of the information without undue hardship.

Privilege Log

The party seeking to protect information from disclosure must expressly claim the material is protected as work product, and must describe the nature of the material in such a way that the requesting party can "assess the applicability of the privilege or protection." Fed. R. Civ. P. 26(b)(5). In the event that a party withholds otherwise discoverable information on the ground of privilege, the withholding party generally must provide a log of the documents withheld or its functional equivalent. See Fed. R. Civ. P. 26(b)(5). Any privilege log must be detailed enough to enable other parties to assess the applicability of the privilege asserted, and should include: (1) the name and capacity of each individual from whom or to whom a document was sent; (2) the date of the document and any attachments; (3) the type of document; (4) the Bates numbers of the documents; (5) the nature of the privilege asserted; and (6) a description of the subject matter in sufficient detail to determine if the document constitutes work product. See Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84, 88 (N.D. Ill. 1992) (noting that "[a]ny failure to comply with these directions will result in a finding that the . . . discovery opponents have failed to meet their burden of establish[ing] the applicability of the privilege."); see also Allen v. Chicago Transit Auth., 198 F.R.D. 495, 498 n.1 (N.D. Ill. 2001) (same).

Here, Defendants' privilege log consists of their letter of July 27, 2007 wherein they provide information on the existence of "certain audio recordings" of Ms. Howard and Mr. Corbin, the Bates number of the recordings and a general assertion of "the work-product privilege." (Defs.' Resp., Ex. C.) The log did not contain any information on who conducted the interview, what date the interview was conducted, or in what capacity the interviewer worked for Defendants. Nor was there a description of the subject matter. In short, the letter of July 27, 2007 was not an adequate privilege log particularly since it did not provide all of the relevant information for the Plaintiff to adequately assess the legitimacy of the privilege. Generally, the result of an inadequate privilege log is disclosure. See Mold-Masters Ltd. v. Husky Injection Molding Systems Ltd, No. 01-C-1576, 2001 WL 1558303, at *2 (N.D. Ill. 2001) ("If the description falls below this standard and fails to provide sufficient information for the court and the party seeking disclosure to assess the applicability of the attorney-client privilege or work product doctrine, then disclosure of the document is an appropriate sanction.").

Further, the privilege log was produced nearly two full months after the interview of Ms. Howard took place.*fn1 Defendants neither produced a privilege log in a timely fashion, nor did they seek to supplement their prior discovery responses. It was only until the fact that the interviews were audio taped did a privilege log get produced. But the privilege log should have been produced after the interviews and as a supplement to their written discovery. Plaintiff argues that a waiver has ...

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