United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ANDREA R. WOOD, District Judge.
Plaintiff John Doe filed this lawsuit against Defendants Society of the Missionaries of the Sacred Heart ("MSC") and Philip DeRea ("DeRea") alleging state law personal injury and negligent supervision causes of action. As set forth in the Amended Complaint, Doe alleges that DeRea, an ordained MSC priest, sexually abused Doe, and that MSC, an apostolic congregation of the Catholic Church, negligently supervised DeRea. Presently before the Court is Plaintiff John Doe's Cross-Motion for Protective Order, for Reconsideration, and to Quash Subpoenas (the "Cross-Motion") (Dkt. No. 298). For the reasons set forth below, the Cross-Motion is denied to the extent it asks the Court to reconsider its prior ruling regarding Defendants' ability to seek discovery regarding communications between Plaintiff and certain litigation financing companies. However, the Cross-Motion is granted to the extent it asks the Court, for the first time, for a protective order limiting production of these documents based on the attorney work product doctrine.
The Cross-Motion arises out of a dispute over third-party discovery. On January 3, 2014, the Court issued an order (the "January 3 Order") granting MSC leave, inter alia, to subpoena records from two litigation financing companies with which Plaintiff communicated regarding this lawsuit. (Dkt. No. 295.) On January 29, 2014, MSC served Plaintiff with a Notice of Intent to Serve Subpoena ("Notice") (Dkt. No. 299 at Ex. B), and attached subpoenas directed to the litigation financing companies requiring them to produce documents relating to Plaintiff, Defendants, and the instant lawsuit (the "Financing Materials").
On January 31, 2014, Plaintiff filed the instant Cross-Motion. (Dkt. No. 298.) In relevant part, the Cross-Motion seeks reconsideration, under Federal Rule of Civil Procedure 54(b), of the Court's order granting Plaintiff leave to subpoena the litigation financing companies. According to Plaintiff, this Court should reconsider its ruling because a recent decision in this District, Miller UK, Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 WL 67340 (N.D. Ill. Jan. 6, 2014) (Cole, J.), represents a "controlling or significant change in the law" since the Court issued its January 3 Order. Plaintiff contends that the Miller UK decision establishes that none of the Financing Materials should be produced. Thus, Plaintiff urges the Court to reconsider its January 3 decision, deny MSC leave to subpoena the litigation financing companies, and quash the subpoenas.
At the February 4, 2014 hearing on the Cross-Motion, Plaintiff's counsel represented that he did not have all of the Financing Materials, but that he believed many of the documents to be protected from disclosure as attorney work product. After some discussion, the parties agreed that Plaintiff would submit the Financing Materials in his possession for in camera review by the Court, after which MSC would accept production of any non-privileged Financing Materials directly from Plaintiff in lieu of obtaining the documents from the litigation financing companies via subpoena. Accordingly, the Court ordered Plaintiff to turn over the Financing Materials for in camera review. Plaintiff submitted to the Court approximately 150 documents comprised of roughly 650 pages of material, as well as a privilege log. Plaintiff asserts attorney work product protection over all or part of 65 of these documents. Plaintiff does not assert any privilege over the remaining documents, but nonetheless argues that he should be permitted to withhold them because they are not relevant to this case.
As discussed more fully below, the Court finds that all of the Financing Materials submitted by Plaintiff are relevant, and thus subject to discovery, but many are nonetheless protected from disclosure by the attorney work product doctrine.
Under Federal Rule of Civil Procedure 54(b), the Court may exercise its inherent authority to reconsider interlocutory orders. See Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 12 (1983) ("every order short of a final decree is subject to reopening at the discretion of the district judge"); Sims v. EGA Prods., Inc., 475 F.3d 865, 870 (7th Cir. 2007) ("nonfinal orders are generally modifiable"). "Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence." Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). With respect to the "manifest error" requirement, the Seventh Circuit has explained that a motion to reconsider may be appropriate if there has been "a controlling or significant change in the law or facts since the submission of the issue to the Court." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990).
Plaintiff argues that Miller UK represents a "controlling or significant change in the law" that would support reconsideration of the Court's January 3 Order. The Court disagrees. Miller UK, while comprehensive and well-reasoned, does not represent a "controlling or significant change in the law." A decision by a magistrate judge on a discovery matter in one case does not constitute controlling precedent for another case. Furthermore, the reasoning of Miller UK is inapposite in this case. In Miller UK, the party seeking production of litigation financing documents argued that the documents were relevant because (1) the funding agreement was allegedly illegal under Illinois law; and (2) the documents were crucial to determining the real party in interest. 2014 WL 67340 at *6. The court found that these issues were not relevant to the case even under the liberal standards of Rule 26. Id. at *22.
In contrast, here, the Financing Materials are relevant because they could potentially shed light on the statute of limitations defense asserted by MSC. MSC raised the argument that Plaintiff's claims are time-barred in its motion to dismiss. (Dkt. No. 47.) And although the Court denied the motion to dismiss based on allegations in the complaint that Plaintiff did not discover his injury until 2006 (Dkt. No. 140 at 17-18), MSC has indicated that it will re-raise this defense in a dispositive motion. ( See Dkt. No. 261.) Because the timing and content of communications with the litigation financing companies could bear on the statute of limitations issue, the Financing Materials are relevant. See Fed.R.Civ.P. 26(b)(1) ("Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's... defense."). Accordingly, the Court denies Plaintiff's Cross-Motion to the extent it requests that the Court reconsider the January 3 Order.
In the Cross-Motion, Plaintiff also argues that the certain of Financing Materials should not be produced because they are protected by the attorney work product doctrine. Although Plaintiff styles his request as a motion to quash subpoenas, it is more properly construed as a motion for entry of a protective order pursuant to Rule 26(c). The work product doctrine protects documents prepared by attorneys in anticipation of litigation for the purpose of analyzing and preparing a client's case. See Fed.R.Civ.P. 26(b)(3); Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). The threshold determination of whether documents constitute work product generally is "whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared for or obtained because of the prospect of litigation." N. Shore Gas Co. v. Elgin, Joliet & E. Ry. Co., 164 F.R.D. 59, 61 (N.D. Ill. 1995) (quoting Binks Mfg. Co. v. Nat'l Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir. 1983)). Courts distinguish between "fact" (or "ordinary") work product and "opinion" work product: while fact work product includes raw factual information, opinion work product includes counsel's mental impressions, conclusions, opinions, or legal theories. See, e.g., Hollinger Intern. Inc. v. Hollinger Inc., 230 F.R.D. 508, 511-12 (N.D. Ill. 2005). Fact work product is subject to discovery when the party seeking discovery demonstrates a substantial need for the material and an inability to obtain the substantial equivalent of the information without undue hardship. Caremark, Inc. v. Affiliated Computer Svcs., Inc., 195 F.R.D. 610, 616 (N.D. Ill. 2000). On the other hand, "immunity from discovery for opinion work product is absolute or nearly absolute." Id.
With certain exceptions discussed below, the Financing Materials identified by Plaintiff in his privilege log constitute opinion work product. These materials incorporate opinions by Plaintiff's counsel regarding the strength of Plaintiff's claims, the existence and merit of certain of Defendants' defenses, and other observations and impressions regarding issues that have arisen in this litigation. The Court finds that these materials were prepared only "because of" this litigation, and that they include counsel's mental impressions, conclusions, opinions, or legal theories. Accordingly, these documents are protected from disclosure to Defendants. See Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 n. 4 (7th Cir. 1996) (stating that Rule 26(b)(3) "expressly admonishes courts to give even greater protection against disclosure of opinion work product, meaning the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.'").
Furthermore, Plaintiff did not waive the attorney work product protection by sharing the Financing Materials with the litigation financing companies. Work product protection is only waived by disclosure to a third party when that disclosure "substantially increase[s] the opportunities for potential adversaries to obtain the information." See Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018, 1025 (7th Cir. 2012). It is significant that these litigation financing companies entered into written nondisclosure agreements that agreed not to divulge any of the information supplied to them by Plaintiff's counsel. This fact "militates against a finding of waiver." Blanchard v. EdgeMark Fin. Corp., 192 F.R.D. 233, 237-38 (N.D. Ill. 2000); see also Mondis Tech., Ltd. v. LG Elecs., Inc., Nos. 2:07 CV 565, 2:08 CV 478, 2011 WL 1714304, at *2 (E.D. Tex. May 04, 2011). Additionally, the litigation financing companies had self-interested reasons to protect the work product from disclosure: breaching a written confidentiality agreement "would surely result in the inability to attract clients in the future." See U.S. Info. Sys., Inc. v. Int'l Broth. of Elec. Workers Local Union No. 3 at al., No. 00 CV ...