United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JEFFERY COLE, Magistrate Judge.
Mary Pat McCullough was employed by the Fraternal Order of Police, Chicago Lodge 7, as secretary to the President from June 2002 until April 5, 2011, when she was fired allegedly because the newly elected President decided to bring in a personal secretary of his own choosing. Following her firing, the FOP sued her in state court alleging that she had misappropriated information from her work computer by "burning" a CD containing confidential files on her last day of employment. Ms. McCullough vigorously denied that charge and contended that the FOP's supposed "proof" showed that she had not done so.
Ms. McCullough contends that during her employment she and other female employees were subjected to sexual harassment and a hostile working environment, and that her entreaties to supervisory employees and the FOP's President, Mark Donahue, fell on deaf ears. ( First Amended Cplt., ¶10, et seq. ).Her friend and co-worker, Marie Marrero, was also fired by the FOP in late September 2011 for allegedly fabricating evidence against her supervisor whom she had claimed had sexually harassed her for a number of years.
Ms. Marrero and Ms. McCullough hired Catherine Caporusso to represent them in filing charges with against the FOP the EEOC. On April 7, 2011, Ms. Marrero and Ms. McCullough went to the EEOC. Ms. Marrero filed her Charge against the FOP that day. About a week later, Ms. McCullough filed her Charge with the EEOC. The EEOC visits were followed by appearances at the Chicago Commission on Human Relations.
On July 3, 2012, Ms. Caporusso, on behalf of Ms. Marrero, filed the Complaint in this court against the FOP. (12 C 5280). Ms. Marrero's Complaint alleges that she was sexually harassed by her supervisor, Mr. Paul Geiger, a lawyer at the FOP, from the time she began her employment with the FOP in April 2007. ( Third Amended Complaint, ¶¶5-6). While the Complaint adverts generally to inappropriate, sexually oriented conduct by the FOP's management and employees. ( Id. at ¶17), its focus is on Ms. Marrero's supervisor's harassment.
The FOP filed a counterclaim in which it accused Ms. Marrero of fabricating evidence in connection with her complaints to the FOP of sexual harassment by her supervisor. The counterclaim alleged that in January 2011, Ms. Marrero falsely represented that she had received a dictation tape containing a sexually harassing comment by one of the attorneys who had complained about her work performance. The counterclaim alleged that the tape was found to have been re-recorded from a separate dictation tape that was made before she even was employed at the FOP and that a "forensic analysis determined that the tape... was dubbed and carefully manipulated."( Counterclaim, Dkt. 18, ¶12). There is no allegation in this or the Marrero case that Ms. McCullough had any involvement in the alleged doctoring of the tape.
At some point in 2012, Ms. Caporusso ceased representing Ms. McCullough, who filed the present case against the FOP, pro se, on November 21, 2012. During the period in which Ms. Marrero and Ms. McCullough had a lawyer-client relationship with Ms. Caporusso, they communicated with each other frequently by email, and, according to Ms. McCullough, shared their "recollections about sexually harassing conduct at the FOP, " "assisted each other with drafting documents, and shared theories and "common strategy, ... common tactics, ... the possibility of settlement, ... settlement goals, etc." ( Pl. Br., Declaration of Mary Pat McCullough, Ex A, ¶13). The Declaration does not say that these activities were undertaken at the behest of their joint lawyer, and there is no Declaration from Ms. Caporusso to support any claim that the email exchanges were at her behest. All that Ms. McCullough's Declaration says is that the listed activities occurred during the temporal period of the joint representation.
The defendant sought discovery from Ms. McCullough of any communications between her and Ms. Marrero relating to the claimed sexual harassment. Ms. McCullough resisted, claiming that the email exchanges were privileged under the "common interest doctrine." By plaintiff's counsel's original estimate, there were about 1, 000 emails. No privilege log was produced, although pursuant to my order, two finally were prepared. Ultimately, a number of the emails were turned over to the defense, and the remainder were submitted for my in camera review. Some 400 emails between Ms. McCullough and Ms. Marrero remain in dispute.
The plaintiff initially contended that Ms. Caporusso was the lawyer for her and Ms. Marrero from April 2011 to November 2012 ( Pl. Br., at 2), and that any communications in that period between the three were privileged under the "common interest doctrine." That statement proved to be quite inaccurate. According to a November 2012 email from the plaintiff, herself, Ms. Caporusso had ceased representing her "many months" earlier. ( Defendant. Response at 3). How many months, the plaintiff's email did not say. This is a conspicuous failing since the plaintiff's argument turns on her claim that during the period April 2011 through November 2012, she and Ms. Marrero were jointly represented by Ms. Caporusso. Thus, as the party claiming privilege, it was the plaintiff's burden to prove the dates of the joint representation.
Given the language of some of the cases, Ms. McCullough's brief understandably has conflated the "common interest doctrine" and the "joint lawyer" doctrine. The two, however are different and must not be confused. See infra at 6. Since both require an understanding of the attorney/client privilege, that is where we begin.
The Attorney Client Privilege
The attorney-client privilege is the oldest of the recognized privileges for confidential communications known to the common law. Jaffee v. Redmond, 518 U.S. 1, 11 (1996); Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Deeply rooted in public policy, In re Ford Motor Co., 110 F.3d 954, 966 (3d Cir.1997), and playing a "vital role" in the administration of justice, American Nat. Bank and Trust Co. of Chicago v. Equitable Life Assur. Soc. of U.S., 406 F.3d 867, 878 (7th Cir.2005), it remains one of the most carefully guarded privileges. See Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998). The privilege's central concern - and its ultimate justification - is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice. Without that frankness, sound legal advice is impossible, and without informed advice, the ultimate goal of the attorney-client privilege is unattainable. Upjohn, 449 U.S. at 389.
The protection of the privilege extends to confidential communications made by a client to his lawyer "[w]here legal advice of any kind is sought... from a professional legal advisor in his capacity as such." Rehling v. City of Chicago, 207 F.3d 1009, 1019 (7th Cir.2000). See also United States v. Evans, 113 F.3d 1457, 1461 (7th Cir.1997). Although the privilege is deemed generally to apply only to communications by the client, statements made by the lawyer to the client will be protected 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, 207 F.3d at 1019.
Knowing disclosure to a third party almost invariably surrenders the privilege. United States v. Nobles, 422 U.S. 225, 239 (1975); United States v. Brock, 724 F.3d 817, 821 (7th Cir. 2013). This is so despite the client's subjective intention that it not be waived. Jenkins, 487 F.3d at 490; 8 Wigmore, Evidence § 2327. And simply copying a lawyer on an otherwise nonprivileged communication will not transform the non-privileged document into a privileged one. See, e.g., In re Avantel, S.A., 343 F.3d 311, 321, n. 11 (5th Cir.2003); In re Human Tissue Products Liability Litigation, 255 F.R.D. 151, 164 (D.N.J. 2008); Bell Microproducts, Inc. v. Relational Funding Corp., 2002 WL 31133195, at *1 (N.D.Ill. 2002) (instruction ...