The opinion of the court was delivered by: Geraldine Soat Brown United States Magistrate Judge
District Judge Charles R. Norgle
Magistrate Judge Geraldine Soat Brown
MEMORANDUM OPINION AND ORDER
Geraldine Soat Brown, United States Magistrate Judge
Before the court is Defendant Whitecap Advisor LLC's Motion to Compel Return of Documents and to Strike Deposition Testimony. [Dkt 96.] For the reasons set out below, to the extent that it was not resolved at previous hearings, the motion is granted.
Coburn Group, LLC, ("Coburn") claims in this lawsuit that Whitecap Advisors, LLC, ("Whitecap") breached an oral contract to pay Coburn fees for referring investors to Whitecap. (Second Am. Compl.) [Dkt 81.] In the present motion, Whitecap originally requested an order requiring Coburn to return two documents totaling 16 pages that it claims are privileged and were inadvertently produced in its document production of approximately 40,000 pages. (Mot. at 1.) Whitecap also asked that the court strike any deposition testimony related to the documents and bar Coburn from using any information obtained from the documents. (Id.) Coburn refused Whitecap's request to return the documents and opposes the motion. (See Pl.'s Resp.) [Dkt 107.] The parties submitted a number of briefs.*fn1 Several hearings were held, at which almost all of the issues were resolved. (See dkt 153, 154, 159.) The sole remaining issue is a half-page long e-mail that Whitecap employee Brian Broesder sent to Whitecap principal Eric Kamisher on September 26, 2007 (hereinafter, "the e-mail").*fn2
Whitecap claims that the e-mail is protected work product and was produced inadvertently despite the efforts of Whitecap and its counsel. Michael Hultquist, one of Whitecap's attorneys, states that, in order to respond to Coburn's discovery requests, Whitecap provided him with computer hard drives containing approximately 72,000 pages of potentially responsive documents. (Hultquist Suppl. Aff. ¶ 6.) He assigned two experienced paralegals to review the documents and to separate them into categories for production or assertion of privilege, including attorney-client and work-product material. (Id.) That review took five weeks. (Id. ¶ 9.) On March 6, 2008, Whitecap produced approximately 40,000 responsive documents to Coburn in hard-copy form. (Id. ¶ 10.) A CD with electronic copies of those documents was sent to Coburn in June 2008. (Id.)
Mr. Hultquist states that he first realized that the e-mail had been produced to Coburn when Coburn's counsel began questioning Mr. Broesder about it at his deposition on July 14, 2008. (Hultquist Suppl. Aff. ¶ 14; see also Mem., Ex. 3, Dep. of Brian Broesder at 222-223.) Mr. Hultquist objected. (Broesder Dep. at 223.) The next day, at Mr. Kamisher's deposition, Mr. Hultquist told Coburn's counsel that the e-mail was privileged and work-product protected, and requested its return. (Hultquist Suppl. Aff. ¶ 15; Mem., Ex. 4, Dep. of Eric Kamisher at 24-25.) Two days after Mr. Kamisher's deposition, Mr. Hultquist again requested the return of the e-mail. (Hultquist Suppl. Aff. ¶ 16; Mem., Ex. 5.) Whitecap agreed that Coburn could have some time to research the issues about the e-mail and the other then-disputed document based on Coburn's attorneys' representation that they would "quarantine" the documents and not use or disseminate them while doing the research. (Mem., Exs. 5 and 6.) Notably, Coburn's counsel agreed that it would not raise any delay by Whitecap in bringing a motion about the documents as evidence that Whitecap did not consider the documents protected. (Mem., Ex. 6.) On August 5, 2008, Coburn's counsel wrote to Whitecap's counsel refusing to return the documents. (Mem., Ex. 7.) In that letter, Coburn's counsel asked whether Whitecap intended to present the issue to the court, agreed to keep the documents secured until the court's decision, and requested that the parties try to work out an agreed briefing schedule in light of the lawyers' schedules. (Id.) Whitecap filed its motion on September 5, 2008.
It was unclear initially whether Whitecap is asserting both attorney-client privilege and work-product protection for the e-mail. In its Reply, Whitecap clarified that it is asserting only work-product protection, not attorney-client privilege. (Reply at 3.) In opposition to Whitecap's motion, Coburn argues: first, that the e-mail is not protected work product; second, that Whitecap's inadvertent production waived any protection; third, that Coburn is entitled to the e-mail because it reveals that Whitecap mislead the court on an earlier motion; and, relatedly, that "Illinois' ethics rules not only allow Coburn Group's attorneys to use these documents in this litigation but arguably demand that they do." (Resp. at 2-3, 8.)
I. Work-Product Protection
"Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative . . . ." Fed. R. Civ. P. 26 (b)(3)(A). Subject to the rule relating to expert witnesses, work-product materials may only be discovered if they are otherwise discoverable under Rule 26(b)(1) and if the requesting party shows "substantial need" for them and an inability to get the "substantial equivalent" of the materials without "undue hardship." Id. Even if discovery is ordered, the court must protect what is referred to as "opinion" work product, that is, "the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Fed. R. Civ. P. 26(b)(3)(B). The primary test of work product is "whether the material sought to be protected from discovery was prepared in anticipation of litigation." Allendale Mut. Ins. Co. v. Bull Data Sys., Inc. 145 F.R.D. 84, 86 (N.D. Ill. 1992).
The court's in camera review shows that the e-mail is work product. The e-mail was sent on September 26, 2007, more than four months after this lawsuit was filed. The subject line of the e-mail is "Requests on Coburn Filing." In it, Mr. Broesder provides Mr. Kamisher with information he gathered about Whitecap's dealings with Coburn, in order to respond to requests by attorneys who were already representing Whitecap. (Hultquist Suppl. Aff. ¶ 12.)
Coburn argues that the e-mail is not work product because it contains only "underlying facts regarding the residences of certain Whitecap investors." (Resp. at 7.) That is not completely accurate. The e-mail is not opinion work product -- there is no disclosure of an attorney's mental impressions, conclusions, opinions or theories -- but it is still work product. The e-mail communicates Mr. Broesder's responses to questions posed by Mr. Kamisher for the attorneys regarding the "Coburn Filing." In order to formulate those responses, Mr. Broesder collected, selected and organized certain information. The facts regarding the residences of Whitecap investors are not protected from discovery, but the work done by Mr. Broesder in preparing the responses is protected. "Work-product protection does not shield information from disclosure; it only protects a party against having to turn over particular documents containing the information." Edna Selen Epstein, The Attorney-Client Privilege and the Work-Product Doctrine vol. 2, 821 (5th ed., ABA 2007).
Thus, the e-mail is protected against disclosure unless Whitecap has waived the protection or Coburn has made the showing of "substantial need" required by Rule 26(b)(3)(A)(ii).
Fed. R. Evid. 502, which became effective September 19, 2008, creates a new framework for managing disclosure issues in a cost effective manner in the age of large electronic document productions. Rule 502 comm. explanatory n. (2007).*fn3 Before Rule 502 was adopted, courts considering whether the unintended disclosure of a privileged document resulted in a waiver of privilege looked at the circumstances surrounding the disclosure and followed a "balancing approach" considering a number of factors. See e.g. Judson Atkinson Candies, Inc. v. LatiniHohberger Dhimantec, 529 F.3d 371, 388-389 (7th Cir. 2008). Rule 502 organizes those considerations into three steps:
When made in a Federal proceeding or to a Federal office or agency, the disclosure [of a communication or information covered by the attorney-client privilege or work-product protection] does not ...