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Daniel J. Schlicksup v. Caterpillar

July 13, 2011

DANIEL J. SCHLICKSUP, PLAINTIFF,
v.
CATERPILLAR, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:

E-FILED

Wednesday, 13 July, 2011 09:54:16 AM

Clerk, U.S. District Court, ILCD

OPINION

On May 24, 2011, this Court entered an order deferring a ruling on the pending motions to quash subpoenas and directed Caterpillar to provide a privilege log and to file documents for an in camera review.

Now before the Court is Caterpillar's privilege log and documents relating to the motion to quash the subpoena to Howrey, LLP ("Howrey"), a law firm which provided legal services to Caterpillar, Inc. ("Caterpillar") over the years.*fn1 This order concerns only the Howrey documents. A separate order will enter regarding the subpoenas to Ernst & Young, LLP, and to PricewaterhouseCoopers, LLP.

Based on a thorough review of the privilege log and documents, the Court concludes that the Howrey documents are protected by the attorney-client privilege and, in the alternative, are also protected by the work-product doctrine, with the exception of a few documents listed below.

Analysis

The Court assumes familiarity with its May 24, 2011 order. In short, Plaintiff's subpoena to Howrey seeks documents prepared by Howrey for Caterpillar regarding the tape recording of meetings by or at the direction of Defendant Dave Burritt, allegedly without the knowledge and consent of all the participants. Howrey moved to quash the subpoena, asserting the attorney-client privilege and the work-product doctrine. The Court concluded that it did not have enough information to resolve the motion and directed Caterpillar to file:

a) a separate, detailed privilege log setting forth the documents withheld or redacted . . . ; b) the documents identified on each privilege log for the court's in camera inspection; and, c) any engagement letter between Caterpillar, Inc., and Howrey. . . . . (d/e 93, p. 20). Caterpillar has complied with that directive.*fn2

Before turning to the documents submitted by Caterpillar, the Court notes that Caterpillar has apparently not included documents numbered 1-70. Caterpillar maintains that these were summarized in an original privilege log provided to Plaintiff last January, but that original log is not part of the court record. Since neither party has submitted a privilege log for documents 1-70, the Court does not know if documents 1-70 are different from the documents before the Court, which are numbered from 71 and up. If documents 1-70 are different than those identified in the privilege log provided to the Court, Plaintiff may file a motion to compel an in camera inspection of 1-70, attaching the privilege log he purportedly received last January.

As for the documents that have been submitted, the Court has reviewed all of them, many of which are duplicates or drafts of the final versions. The privilege log provided to the Court, which has also been provided to Plaintiff, is an accurate description of these documents.

As this Court stated in its prior order, 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. South Berwyn School Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). The analysis is "(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 'relat[ed] to that purpose' and 'made in confidence . . . by the client.'" Id., quoting United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997). "[T]he attorney-client privilege protects not only the attorney-client relationship in imminent or ongoing litigation but also the broader attorney-client relationship outside the litigation context." Sandra T.E., 600 F.3d at 620.

From the court's review, it is clear that the withheld documents were generated in response to Caterpillar's request to Howrey for legal advice regarding two internal complaints filed by Plaintiff: one in 2007 about alleged illegal recordings of Caterpillar meetings and fears of retaliation by Caterpillar superiors; and the second in 2008 about ...


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