The opinion of the court was delivered by: Geraldine Soat Brown, United States Magistrate Judge
Judge Joan H. Lefkow
Magistrate Judge Geraldine Soat Brown
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff Zafra Lerman's Renewed Motion to Compel Compliance with the Subpoena to R. Michael DeSalle for Deposition and Production of Documents. (Pl.'s Mot.) [Dkt 32.] Defendants Allen M. Turner, Warrick L. Carter, Steven Kapelke, Annice Kelly and Columbia College Chicago (collectively, "defendants") have submitted certain documents for in camera review.*fn1 For the reasons set forth below, the motion is granted in part and denied in part without prejudice.
Lerman was a tenured professor at defendant Columbia College Chicago ("Columbia") until 2009 when Columbia terminated her employment following an investigation into her use of grant funds. (Answer ¶¶ 2, 11, 19-20.) [Dkt 15.] To conduct its investigation, Columbia retained Matthew Crowl, an attorney with the law firm of Schiff Hardin, LLP. (Defs.' Suppl. Resp., Ex. 1, Aff. Matthew C. Crowl ¶ 3.) On October 1 and 2, 2009, Mr. Crowl interviewed several Columbia employees, including Lerman. (Id. ¶ 4.) It appears that he did not at that time interview Columbia's Chief Financial Officer R. Michael DeSalle, whom Lerman says had advised her on the use of grant funds. (Pl.'s Mot. at 2.) Mr. Crowl memorialized the October 1 and 2 interviews in a memorandum dated October 9, 2009, which he addressed to Columbia's General Counsel Annice Kelly (the "Crowl Report"). (Defs.' Suppl. Resp., Ex. 2.) A copy of the Crowl Report was placed in Lerman's personnel file.
Mr. Crowl attests that at the conclusion of his interview with Lerman, he informed her that "the diversion of grant monies was grounds for termination, but that she should meet with an attorney and decide whether she would prefer to resign in lieu of termination." (Crowl Aff. ¶ 5.) Columbia Provost Steven Kapelke wrote Lerman a letter dated October 5, 2009 conveying the termination decision. (Defs.' Suppl. Resp., Ex. 3.) The parties, however, dispute when Lerman was actually terminated from Columbia. Lerman filed a charge of discrimination with the EEOC on October 5, 2009, which her counsel e-mailed to Columbia that day. (Answer ¶ 24; Defs.' Suppl. Resp., Ex. 4.) On October 7, 2009, Lerman and her counsel met with representatives of the college.
(Pl.'s Mot., Ex. I at 4; Pl.'s Suppl. Reply at 5; Defs.' Suppl. Resp. at 3.) She also requested a copy of her personnel file on that date. (Defs.' Suppl. Resp., Ex. 7.) When she obtained the file on October 16, 2009, a copy of the Crowl Report was in it. (Pl.'s Mot., Ex. G; Defs.' Suppl. Resp., Ex. 8.) The Crowl Report was also submitted to the Elected Representatives of the College ("ERC") when that body reviewed Columbia's termination decision. (Pl.' Mem., Ex. I at 4, Ex. J at 8.)
Shortly after the ERC issued its findings, Lerman brought this action against Columbia and certain of its officers. (Compl.) [Dkt 1.] She alleges claims of gender, national origin and sex discrimination, civil rights violations, defamation and breach of contract, among other things. (Id.)
In June 2010, Lerman served a subpoena duces tecum on Mr. DeSalle. (Pl.'s Mot., Ex. A.) After an initial dispute among the parties as to the order of depositions, on July 29, 2010, the District Judge ordered compliance with the subpoena served on Mr. DeSalle. [Dkt 27.]*fn2 According to Lerman, defendants thereafter delivered two documents responsive to the subpoena: a print out of Mr. DeSalle's outlook calendar data from May 2005 through October 8, 2009, and a document entitled "R. Michael DeSalle Timeline of Dr. Zafra Lerman Events" ("DeSalle Timeline") which was heavily redacted. (Pl.'s Mot. at 3 and Ex. C.). Defendants asserted attorney-client privilege and work-product protection as to other material they withheld. (Defs.' Resp. at 7-8, Defs.' Suppl. Resp. at 4-5.) They subsequently provided a log to the court specifying their claims of privilege and protection.
Lerman now moves to compel production of documents responsive to the DeSalle subpoena, and for an order overruling Columbia's attorney-client privilege and work-product protection claims as they relate to communications between Mr. DeSalle, Mr. Crowl and/or Ms. Kelly or any of their colleagues regarding Lerman's termination. (Pl.'s Mot. at 12.) Defendants' privilege log identified three documents withheld on the basis of attorney-client privilege and/or work-product protection:
(1) a memorandum authored by Mr. Crowl's colleague John Tanagho memorializing Mr. Crowl's October 22, 2009 interview of Mr. DeSalle (the "Tanagho Memorandum"); (2) redacted portions of the DeSalle Timeline; and (3) a document described as a July 8, 2010 communication from Mr. Desalle to Columbia's Assistant General Counsel Paul A. Denham. Defendants submitted only the Tanagho Memorandum and the unredacted DeSalle Timeline for in camera review, and it appears from the parties' submissions that only those two documents remain disputed. Rulings are made, therefore, only as to those documents.
The attorney-client privilege protects communications made in confidence by a client and a client's employees to an attorney, acting as an attorney, for the purpose of obtaining legal advice. Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010) (citing Upjohn Co. v. U.S., 449 U.S. 383, 394-99 (1981)).*fn3 "Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn, 449 U.S. at 389. The privilege protects not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable the lawyer to give sound and informed advice. Id. at 390. Factual investigations, therefore, "performed by attorneys as attorneys fall comfortably within the protection of the attorney-client privilege." Sandra T.E., 600 F.3d at 619 (emphasis in original).
Because the privilege withholds relevant information from the fact finder, it is construed narrowly. U.S. v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997). It protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege. Fisher v. U.S., 425 U.S. 391, 403 (1976). Determining if a communication falls within the protection of the attorney-client privilege requires asking: "(1) whether legal advice of any kind was sought from a professional legal adviser in his capacity as such; and (2) whether the communication was related to that purpose and made in confidence by the client." Sandra T.E., 600 F.3d at 618 (internal quotations and citations omitted). The party asserting the privilege has the burden of establishing all of its elements. U.S. v. BDO Seidman, 337 F.3d 802, 811 (7th Cir. 2003); U.S. v. Evans, 113 F.3d at 1461. A blanket claim of privilege is unacceptable; rather, the claim of privilege must be made and sustained on a question-by-question or document-by-document basis. U.S. v. Lawless, 709 F.2d 485, 487 (7th Cir.1983).
The attorney-client privilege is "generally waived when the client asserts claims or defenses that put his attorney's advice at issue in the litigation." Garcia v. Zenith Elecs. Corp., 58 F.3d 1171, 1175 n. 1 (7th Cir. 1995) (citing with approval Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851 (3rd Cir. 1994)). Intentionally disclosing privileged or work-product protected materials may also waive the privilege or protection for undisclosed materials if they concern the same subject matter and ought in fairness to be considered together with the disclosed materials. Fed. R. Evid. 502.
The work-product doctrine is distinct from and broader than the attorney-client privilege. U.S. v. Nobles, 422 U.S. 225, 238 n. 11 (1975). The doctrine protects "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." Fed. R. Civ. P. 26(b)(3)(A). At its core, the work-product doctrine shelters the mental processes of an attorney, providing a privileged area in which the attorney can analyze and prepare a client's case. Nobles, 422 U.S. at 238. The doctrine is an "intensely practical" one, grounded in the realities of adversary litigation. Id. To establish work-product protection, a party must show that the document was in fact created in anticipation of litigation. Logan v. Com. Union Ins. Co., 96 F.3d 971, 976-77 (7th Cir. 1996). In determining whether the protection applies, courts look to whether "in light of the factual context 'the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'" Id. (quoting Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir. 1983)).
The work-product protection is qualified; it may be overcome if a party can establish a "substantial need" for the material and an inability to obtain equivalent materials without "undue hardship," although an attorney's "mental impressions, conclusions, opinions, or legal theories" are to be protected. Fed. R. Civ. P. 26(b)(3)(A), (B). Like the attorney-client privilege, the work-product protection may be waived. See Nobles, 422 U.S. at 239 (finding defendant waived work-product protection as to matters covered in investigator's testimony by presenting investigator as a witness); Vardon Golf Co., Inc. v. Karsten Mfg. Corp., 213 F.R.D. 528, 534 (N.D. Ill. 2003) (finding plaintiff waived work-product protection by disclosure of information in public document obtained by adversary).
The arguments presented in this motion are rather unusual. Lerman seeks a declaration that defendants' disclosure of the Crowl Report waived attorney-client privilege and work-product protection for Mr. Crowl's investigation materials and defendants' communications with him. Defendants argue that, because the Crowl Report was never protected from discovery in the first place, the fact that they disclosed it did not trigger a waiver of privilege or protection as to any other materials. The resulting posture here is that Lerman argues for the existence of Columbia's attorney-client privilege, while defendants argue against it.
I. The attorney-client privilege applied to the Crowl Report
Central to the dispute is whether the Crowl Report was privileged. Under the Seventh Circuit's decision in Sandra T.E., 600 F.3d 612, that depends on Mr. Crowl's role.
In Sandra T.E., the Seventh Circuit reversed a district court's order compelling the law firm of Sidley Austin LLP (then Sidley Austin Brown & Wood) to turn over materials prepared in the course of its work for the school board of the defendant District. The board had hired Sidley Austin to investigate school administrators' response to sexual abuse charges against a teacher, examine whether any employee had failed to comply with district policies or applicable laws, and analyze the effectiveness of the District's compliance procedures. Id. at 616. The attorneys prepared and delivered an oral report of the firm's findings at a closed executive session of the board, and later delivered to the board a written "Executive Summary" report marked "Privileged and Confidential." Id. In the ensuing litigation, other attorneys, not Sidley Austin, represented the District, and the plaintiff subpoenaed the Sidley Austin attorneys for their notes and memoranda. The district court rejected Sidley Austin's claims of attorney-client privilege and work-product protection. Id. at 618.
The Seventh Circuit looked to the Supreme Court's ruling in Upjohn: when factual investigations are performed by attorneys as attorneys, they are protected by the attorney-client privilege. Id. at 619. The question, then, was whether the service provided by Sidley Austin was the factual investigation, or whether the factual investigation was a part of the legal services provided by the firm. "The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant." Id. at 619 (quoting Upjohn, 449 U.S. at 390-91). Beginning with the firm's engagement letter, the court found that Sidley Austin's factual investigation had been the "necessary prerequisite to the provision of legal advice about how the District should respond." Id. at 620. The court highlighted the steps taken to maintain the confidentiality of Sidley Austin's investigation and report. No third parties had attended the witness interviews, the attorneys' oral report had been presented in a closed board session, and the written report was labeled with a "confidential" header. Id. Notably, the attorneys also had provided interviewees with "'Upjohn warnings' emphasizing that Sidley represented the School Board and not the employee and that the School Board had control over whether the conversations remained privileged." Id.
The facts here are similar to those in Sandra T.E., although the parties' positions here invert the arguments. In order to sustain their position that they could disclose the Crowl Report without waiving attorney-client privilege and work-product protection for entries in the DeSalle Timeline and the Tanagho Memorandum, defendants assert that the purpose of Mr. Crowl's retention changed over time. Defendants say that Mr. Crowl was initially retained only to do a factual investigation to determine whether Lerman had misused grant money, and that his report simply documented the results of that investigation. (Defs.' Resp. at 1-2.) They assert that, after Lerman filed her charge of discrimination and after she and her counsel met with representatives of the college, the nature of Mr. Crowl's retention changed, and only then did his work became legal in nature and in anticipation of litigation. (Id. at 8; Defs.' Suppl. Resp. at 8-9.) Lerman, on the other hand, argues that all of Mr. Crowl's work was attorney work and that in disclosing his report, defendants waived any discovery protection for communications about the investigation. (Pl.'s Mot. at 1-2, 6-7; Pl.'s Suppl. Reply at 4-5.)
The record does not support defendants' argument that Mr. Crowl was initially retained only to conduct a factual investigation into the allegations of wrongdoing against Lerman and not to give legal advice. Defendants do not submit an engagement letter or other evidence that would demonstrate the reason Mr. Crowl was retained. The evidence suggests that before Columbia hired Mr. Crowl, it was aware that the allegations of wrongdoing against Lerman raised a myriad of issues for the college, including legal issues. (See, e.g., Pl.'s Mot., Ex. E, August 29, 2009 memorandum from Provost Kapelke to Ellen Krutz, Vice President of Human Resources, referring to "legal, managerial, ethical" problems.) It is reasonable to conclude that the purpose of Mr. Crowl's investigation was to lay the groundwork for providing legal advice.
Mr. Crowl's conduct in the investigation and the content of the report confirm that he was acting as an attorney, not simply a factual investigator, when he conducted his investigation for Columbia. It appears from the report that no third parties were present when Mr. Crowl interviewed Columbia employees. (See Crowl Rpt.) His report was prepared for and directed to Columbia's general counsel, Annice Kelly. (Id. at 1.) Mr. Crowl gave an "Upjohn warning" to Lerman and each of the three co-workers he interviewed that "[p]ursuant to Upjohn, counsel informed [the interviewee] that Schiff Hardin and Annice Kelly represented Columbia College only, and that [they] did not represent [that individual]." (Id. at 1, 5, 8 and 10.) The communications reflected in the Crowl Report "concerned matters within the scope of the employees' . . . duties, and the employees themselves were sufficiently aware that they were being questioned in order that [the college] could obtain legal advice." See Upjohn, 449 U.S. at 394.
Defendants suggest that the change in Mr. Crowl's role occurred and his factual investigation was "completed" after his October 2 interview of Lerman because the decision to terminate Lerman had already been made. (Defs.' Suppl. Resp. at 3.) The record does not support that argument. Mr. Crowl states only that he "informed [Lerman] that the diversion of grant monies was grounds for termination, but that she should meet with an attorney and decide whether she would prefer to resign in lieu of termination." (Crowl Aff. ¶ 5.) Furthermore, Mr. Crowl continued to conduct interviews of other Columbia employees after his meeting with Lerman. (Crowl Rpt. at 10-11.) Mr. Crowl's affidavit does not state that his initial retention was not in order to give legal advice. The only document demonstrating the later investigation by Mr. Crowl, the withheld Tanagho Memorandum, also does not reflect a shift in focus. There does not appear to be any substantive difference in the nature or scope of Mr. Crowl's interview of Mr. DeSalle on October 22, 2009 as compared to interviews of other Columbia employees on October 1 and 2, 2009.
The record here leads to the conclusion that Mr. Crowl was hired to perform an investigation in order to provide legal advice about how Columbia should respond to the allegation that Lerman had misused grant money. Until it was disclosed, the Crowl Report summarizing that investigation was protected by attorney-client privilege. See Sandra T.E., 600 F.3d at 620.
It is possible that the Crowl Report was also protected work product, although the record in this respect is less clear. Mr. Crowl conducted the interviews on October 1 and 2, 2009, and his report is dated October 9, 2009. By October 9, Columbia had issued written notice of termination to Lerman, met with her and her counsel, and received notice of her charge of discrimination. Whether or not litigation was foreseeable at the time of the interviews, it was foreseeable at the time Mr. Crowl issued his report, although it has not been established whether the report was prepared because of that fact. Defendants' focus on whether legal opinions are set ...