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Srail v. Village of Lisle

December 12, 2007

SUSAN SRAIL, ET AL., PLAINTIFFS,
v.
VILLAGE OF LISLE, DEFENDANT AND THIRD PARTY PLAINTIFF,
v.
ILLINOIS-AMERICAN WATER CO., THIRD PARTY DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

In this decision, the Court considers two pending matters: attorney David Ader's motion to quash deposition subpoenas served upon him by the plaintiffs and the third party defendant, and the plaintiffs' motion to compel the third party defendant to produce certain documents. For the reasons stated below, the Court denies both motions.

Background

The plaintiffs in this case have sued the Village of Lisle for violation of their rights under the Constitution's Equal Protection Clause, common law negligence, and unlawful taking of their property in violation of the Illinois Constitution. The plaintiffs' claims concern the existence and operation of a privately-run water system which plaintiffs contend provides them with deficient service, thus damaging the value of their property. In their equal protection claim, plaintiffs contend that Lisle's refusal to connect them to the municipal water system is irrational and discriminatory. In their "taking" claim, plaintiffs contend that they are the owners of the water system and that the Village has permitted the private water company, Illinois American Water Co. (IAWC), to take their property by allowing IAWC to operate the system. This is somewhat of an oversimplification of plaintiffs' claims, but it will suffice for present purposes.

The lawsuit was filed in May 2007. The plaintiffs originally sued IAWC as well as Lisle. The Court dismissed the plaintiffs' claims against IAWC. Later, IAWC was brought back into the case via a third party claim asserted by Lisle. In the third party claim, Lisle seeks, among other things, indemnification from IAWC for any damages it is required to pay to plaintiffs.

Discussion

1. Ader's Motion to Quash

Lisle is represented in this case by attorneys from the law firm of Querrey & Harrow and attorneys from the law firm of Ancel, Glink, Diamond, Bush, DiCianni & Rolek. David Ader, an attorney with the Ancel firm, is one of the lawyers who has an appearance on file in the case.

In or about 2005, a shade under two years before this lawsuit was filed, Lisle created a "water task force" to investigate, study, and find facts relating to alleged deficiencies in the service provided by the IAWC water system to the areas in which the plaintiffs reside. The members of the task force consisted primarily of private citizens, including two of the plaintiffs in this case, Susan Srail and Janeen Brzeczek, who were residents of one of the areas to which IAWC provides water service. The task force held meetings in public and was required to comply with the requirements of the Illinois Open Meetings Act. Its meetings were televised, and minutes of the meetings were placed on Lisle's web site.

Lisle hired Ader to perform legal services in connection with the work of the task force. Among other things, he attended meetings of the task force, conducted research, and rendered opinions to the task force. His opinions concerned who owned the water and sewer systems in the areas in question, the enforceability of Lisle ordinances as applied to IAWC, and the options available to Lisle to help residents deal with problems with the water system. Ader's memoranda on these topics were shared with the task force and were otherwise made public. In his memorandum concerning available options, he listed and briefly discussed fourteen potential options, including discussions with the county water commission, renegotiating Lisle's agreement with IAWC or alteration of certain fees, various potential changes to the physical setup of the water system, condemnation of a portion of the IAWC water system, fighting proposed rate increases before the Illinois Commerce Commission, changes in state legislation, and decertification of IAWC's service.

Both plaintiffs and IAWC have subpoenaed Ader for a deposition and for production of documents. Ader has moved to quash the subpoenas. He argues that it is inappropriate to take the deposition of counsel for an opposing party in litigation and that the plaintiffs and IAWC have failed to show the necessary justification for taking his deposition. He also argues that the matters on which the other parties seek to depose him are protected by one or more of several privileges: the attorney-client privilege, the work product doctrine, the legislative privilege, and the deliberative process privilege.

The Court rejects Ader's argument that it is presumptively inappropriate for the other parties to take his deposition. Both plaintiffs and IAWC have expressly disavowed any intention to question Ader regarding any matters postdating the filing of this lawsuit. Rather, they seek to question him only with regard to the work he performed on behalf of the water task force. For this reason, Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1987), the primary case Ader cites as establishing a presumption of sorts against depositions of trial counsel, does not govern the present case. The Shelton analysis does not apply when the topics of deposition involve counsel's knowledge of a prior underlying matter that is relevant to the current litigation. See Pamida v. E.S. Originals, Inc., 281 F.3d 726, 730 (8th Cir. 2002) ("Shelton was not intended to provide heightened protection to attorneys who represented a client in a completed case and then also happened to represent that same client in a pending case where the information known only by the attorneys regarding the prior concluded case was crucial."). A party cannot insulate an attorney who has otherwise relevant knowledge from the processes of discovery by having that attorney file an appearance in the pending case. See aaiPharma, Inc. v. Kremer Urban Devel. Co., 361 F. Supp. 2d 770, 775 (N.D. Ill. 2005). Ader has knowledge that is unquestionably relevant regarding, among other things, the question of who owns the water system, a key disputed issue regarding the plaintiffs' "taking" claim.

The Court also rejects Ader's claims of work product and attorney-client privilege. First, the work product doctrine "shields materials that are prepared in anticipation of litigation from the opposing party, on the theory that the opponent shouldn't be allowed to take a free ride on the other party's research, or get the inside dope on that party's strategy . . . ." Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 767-68 (7th Cir. 2006) (citations omitted). The doctrine applies, however, only when the material at issue "can fairly be said to have been prepared or obtained because of the prospect of litigation." Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976-77 (7th Cir. 1996) (emphasis in original; citations omitted). That requirement is not met with regard to Ader's opinions that were conveyed to the water task force or the work that went into preparing those opinions; though Ader noted that litigation was one of many possibilities, there is nothing in the record to suggest that the prospect of litigation had anything to do with his retention or the work he did. "'The mere fact that litigation does eventually ensue does not, by itself, cloak materials . . . with the work product privilege; the privilege is not that broad.'" Id. at 976 (quoting Binks Mfg. Co. v. Nat'l Presto Indus., Inc., 709 F.2d 1109, 1118 (7th Cir. 1983)).

Second, neither Ader nor Lisle has established that the attorney-client privilege prevents the disclosure of the matters about which IAWC and the plaintiffs apparently intend to inquire. First, the Court is somewhat dubious regarding whether the privilege applies at all in this context, given the presence on the task force of members of the public and the absence of any evidence suggesting that they believed they had an attorney-client relationship with Ader or that they were somehow acting as a surrogate for Lisle itself. Second, there is no suggestion that Ader will be called upon at the deposition to disclose communications made by his client (whoever or whatever it was) for the purpose of obtaining legal advice. Third, and perhaps most importantly, even if the privilege applies, it has been waived. Lisle made no attempt to object or otherwise intervene when IAWC's counsel questioned the two plaintiffs who served on the task force about their communications with Ader. This failure to object amounts to a waiver of the privilege. See United States v. Sanders, 979 F.2d 87, 92 (7th Cir. 1992); Perrignon v. Bergen Brunswig Corp., 77 F.R.D. 455, 461 (N.D. Cal. 1978); see also, Rowe Int'l Corp. v. Ecast, Inc., 241 F.R.D. 296, 301 (N.D. Ill. 2007). Having waived the privilege ...


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