United States District Court, N.D. Illinois, Eastern Division
JOHN W. LEE, III, Plaintiff,
CHICAGO YOUTH CENTERS, an Illinois nonprofit corporation; and J. HARRY WELLS, individually, Defendants.
MEMORANDUM OPINION AND ORDER INTRODUCTION
JEFFREY COLE, District Judge.
Plaintiff seeks to compel Chicago Youth Centers ("CYC") to produce certain documents, including his personnel file and a plan of reorganization for the CYC, that were attached to emails exchanged between CYC employee J. Harry Wells and CYC's previous counsel, Dia Morgan of the Chicago firm of Roger B. Derstine, Chartered. Initially, the defendant's claim was that the documents are immune from discovery under the attorney-client privilege. The plaintiff contends that his personnel file and the other attachments to the emails did not "bec[o]me cloaked with privilege" simply by virtue of having been sent to an attorney. And, apart from the argument on the merits, Mr. Lee contends that the defendants' privilege contentions have continually changed and were not supported by a proper privilege log, and thus, the claims of privilege are waived.
John Lee is a 64-year-old, African American male, who worked for CYC for 30 years until he was fired in 2011. He filed this employment discrimination action in November, 2012. and an amended complaint on March 21, 2013. (Dkt. 25). He served discovery requests in May 2013. For most of the ensuing year, he says, he has been stymied in obtaining compliance with his discovery requests. On July 2, 2013, Mr. Lee's counsel wrote to defense counsel, noting among other things the virtual absence of email and other electronically-stored information among defendants' document production. On July 16, 2013, defense counsel responded that "it does not appear that there was much in the way of email communication on these issues." (Dkt. 71, Exhibit 1).
In October, defense counsel wrote to Mr. Lee's counsel to confirm a search protocol for "90, 000 emails received from the backup tapes." (Exhibit 2). Among the search terms was the following: "for privilege: Derstine and Dia Morgan." ( Id. at 2). Ms. Morgan previously served as counsel for CYC. On October 17, 2013, Mr. Lee's counsel wrote to defense counsel regarding the search terms, objecting to the inclusion of the attorney names "if the point of these search terms is to withhold all documents on which the names of the identified attorneys appears." Defense counsel responded:
The purpose of the search terms for privilege is to flag for review documents that are potentially privileged. For instance, any e-mail between CYC and its counsel, Dia Morgan, regarding "John" "Lee" which are "hit" search terms, will need to be reviewed for privilege and, if necessary, included in a privilege log.
(Exhibit 3, at 3).
On November 21st, the parties were directed to submit a proposed discovery schedule prior to the next scheduled status date on December 20, 2013. (Dkt. 56). Prior to the status hearing, Mr. Lee's counsel again conferred with defense counsel regarding the ESI production in order to prepare a proposed discovery schedule in accordance with the court's direction. Defense counsel indicated that his office would "be able to produce... the electronic documents recovered from the back-up tapes by January 10th at the latest." (Exhibit 4). Accordingly, Mr. Lee's counsel submitted a proposed discovery schedule that recited that "Defense counsel has advised that defendants will be in a position to complete the production of documents, including electronically stored information, on or before January 10, 2014." (Dkt. No. 58). The schedule was approved on December 20th. (Dkt. 59).
On January 13th, having received no production of ESI, Mr. Lee's counsel again made inquiry of defense counsel, who agreed to make the responsive production by January 20th. (Exhibit 5). On Thursday, January 16, 2014, defense counsel wrote to Mr. Lee's counsel to advise that additional time would be necessary to make the required production. In this email, defense counsel indicated that the production would be forthcoming on January 22nd. (Exhibit 6).
On January 22th, defense counsel turned over a DVD containing approximately 6, 000 pages of responsive ESI. No privilege log accompanied this production. (Exhibit 7). On the 23rd, defense counsel wrote to Mr. Lee's counsel to advise that he anticipated "serving Plaintiff with the ESI privilege log sometime next week" - i.e., by Friday, January 31st. (Exhibit 8).
On February 4th, having received no privilege log, Mr. Lee's counsel wrote to defense counsel. (Exhibit 9). The next day, defense counsel produced a 5-page privilege log, captioned "First Privilege Log/Assertion"). (Exhibit 10). Two days later, Mr. Lee's counsel again wrote to defense counsel raising concerns about the privilege log, including the failure to identify the privilege being asserted, the failure to identify several attachments being withheld, and the failure to identify the individuals to whom the withheld materials were sent. With commendable candor, the email also raised the possibility that there had been an inadvertent production of documents as to which defense counsel may have intended to assert a claim of privilege.
On February 10th, defense counsel confirmed that the privilege being claimed for the materials withheld from the January 22nd supplemental production was the attorney-client privilege. (Exhibit 12). On February 11th, defense counsel wrote to Mr. Lee's counsel, stating that "[i]t has also been brought to our attention that certain documents included in our production, Bates Nos. CYC0000739-741, 757-764, 891-896, 901-908, 1115-1117, 5239-5241, 5509-5517 and 5621-5626, were inadvertently produced with CYC's production of documents." (Exhibit 13) (defendants' "Second Privilege Log/Assertion"). Mr. Lee's counsel then segregated the identified materials and contacted Mr. Lee to ensure their immediate return. (Exhibit 14).
On February 20th, a third privilege log was offered, which, in addition to identifying the documents in the Second Privilege Log, now included "John Lee's Personnel File with Evaluations and Transaction Data showing Work History." Defendants asserted that these attachments constituted attorney work product. (Exhibit 15).
On February 28th, Mr. Lee's counsel wrote expressing concern about aspects of the Third Privilege Log, including the new designation of the plaintiff's personnel file as being protected by the work-product doctrine and the withholding of various documents merely because they were sent to an attorney. (Exhibit 16). On March 4th defendants produced certain of the withheld attachments, but refused to address others. (Exhibit 17). A "Fourth Privilege Log" accompanied this email. Since then, however, the defendants have rather inconsistently with the claim of privilege - but quite rightly - produced some 800 pages of materials from or relating to Mr. Lee's personnel file.
The deposition of defendant Wells occurred on March 11th. By then, defendants had produced four separate logs for the ESI production, none of which included documents for which the defendants claimed privilege at and following the Wells deposition. During that deposition, plaintiff's counsel claims the defendants asserted a claim of privilege for the first time with respect to two deposition exhibits (Exhs. 22 and 35) and instructed the witness not to answer questions regarding these materials. Defense counsel confirmed this privilege assertion in his letter of March 21 and identified additional materials that defendants now were claiming were privileged, but which, it is claimed, were "inadvertently produced." (Exhibit 19). In short, there were now multiple iterations of the privilege log.
The Attorney Client ...