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Naik v. Boehringer-Ingelheim Pharmaceuticals

June 19, 2008

PRAKASH NAIK, PLAINTIFF,
v.
BOEHRINGER-INGELHEIM PHARMACEUTICALS, INC., DEFENDANT.



The opinion of the court was delivered by: Nan R. Nolan United States Magistrate Judge

Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

Plaintiff Prakash Naik has filed suit alleging that Defendant Boehringer-Ingelheim Pharmaceuticals, Inc. ("BIPI") wrongfully terminated his employment on August 5, 2005 based on his age and nationality in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Currently before the court is Plaintiff's Combined Motion to Compel Discovery. For the reasons set forth here, the motion is denied.

BACKGROUND

On December 11, 2007, BIPI submitted its responses to Plaintiff's first set of written discovery requests, including production of some 2,300 pages of documents. Several months later on May 8, 2008, BIPI discovered that it had inadvertently produced three privileged documents Bates stamped D000000128, D000000129 and D000000136. Document 136, the only one at issue here, consists of four email messages dated August 3 through 5, 2005 between Glen Englram, BIPI's Human Resources Business Partner; William Somers, BIPI's former Regional Director; and Alessandra Hawthorne, BIPI's corporate counsel. The emails relate to a draft letter regarding Plaintiff's possible termination, the contents of which had been discussed during an earlier conference call. (Def. Resp., at 3, 4.) BIPI also asserts a privilege over the draft letter, which was not inadvertently produced.

Upon discovering the production of privileged documents, BIPI's counsel promptly called Plaintiff's counsel on May 8, 2008, and again the next day,*fn1 to assert the privilege. Nevertheless, on May 9, 2008, Plaintiff's counsel attempted to use Document 136 at the deposition of Mr. Englram. When BIPI's counsel objected, Plaintiff's counsel agreed to refrain from pursuing questions relating to the document at that time, but reserved the right to challenge the claim of privilege. Three days later, BIPI's counsel sent Plaintiff's counsel an email message formally challenging the privilege as to Document 136 and advising that Plaintiff intended to use the document at the deposition of Mr. Somers the following day. During that deposition, BIPI's counsel again raised a privilege objection, and the parties agreed to leave Mr. Somers's deposition open as to questions relating to Document 136 pending resolution of the matter.

On May 13, 2008, presumably after Mr. Somers's deposition had concluded for the day, BIPI's counsel sent Plaintiff's counsel a Privilege Log generally asserting the attorney-client and/or work product privileges over several documents, including Document 136. (Ex. D to Pl. Mot.) Plaintiff now objects that Document 136 is not in fact privileged, and that BIPI has waived any privilege by submitting an inadequate privilege log and by producing the document during discovery.

DISCUSSION

A. Privilege

Plaintiff first argues that he should be allowed to use Document 136 in this case because it is not protected by any privilege.*fn2 The Seventh Circuit test to determine attorney-client privilege is:

(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. United States v. White, 950 F.2d 426, 430 (7th Cir. 1991). The purpose of the privilege is to "encourage full disclosure and to facilitate open communication between attorneys and their clients." United States v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007) (quoting United States v. BDO Seidman, 337 F.3d 802, 810 (7th Cir. 2003)). In addition to protecting statements made by the client, the privilege also protects statements from 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) (internal citations omitted).

As noted, Document 136 consists of a series of four email messages sent between August 3 and 5, 2005. Two of those messages are between Mr. Englram and Mr. Somers, and are not privileged. It is undisputed that the third and fourth messages are communications between BIPI and its corporate counsel, Alessandra Hawthorne. An in camera review of the August 4, 2005 message from Ms. Hawthorne to Mr. Englram reveals that it cannot be construed as a communication regarding legal advice and, thus, is not privileged.

BIPI claims that the remaining August 3, 2005 message from Mr. Englram to Ms. Hawthorne is privileged because "it reflect[s] communications between Englram . . . and one of BIPI's corporate counsel, requesting legal advice and guidance about the possible termination of Plaintiff's employment for violating Company policy." (Def. Resp., at 3.) BIPI also asserts the attorney-client privilege over the draft letter attached to Document 136 because "this document was sent to Ms. Hawthorne by Mr. Englram for her legal advice following a conversation between Mr. Englram, Ms. Hawthorne and . . . [Mr.] Somers, in which they discussed the document's general contents." (Id.) The court is satisfied, based on an in camera review of the documents, that BIPI was seeking legal advice from Ms. Hawthorne regarding Plaintiff's possible termination. Thus, the fourth email message and the draft letter are both privileged.

Plaintiff disagrees, citing Neuder v. Battelle Pacific Northwest Nat'l Lab., 194 F.R.D. 289 (D.D.C. 2000) for the proposition that "[w]hen a committee inquires about the legal implications of a proposed decision to terminate an employee, the business purpose of the decision predominates over the legal issues discussed." Id. at 293 (citing Marten v. Yellow Freight Sys., Inc., No. Civ. A. 96-2013-GTV, 1998 WL 13244, at *8 (D. Kan. Jan. 6, 1998)). In this case, however, there is no suggestion that BIPI's in-house counsel was serving on a committee charged with considering employment issues. Id. at 294 (noting that the in-house attorney was a member of the company's Personnel Action Review Committee). Moreover, there is no evidence that Ms. Hawthorne was acting as anything other than a legal adviser when ...


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