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Lee v. Chicago Youth Centers

United States District Court, N.D. Illinois, Eastern Division

September 29, 2014

JOHN W. LEE, III, Plaintiff,
v.
CHICAGO YOUTH CENTERS, an Illinois nonprofit corporation; and J. HARRY WELLS, individually, Defendants

For John W. Lee, III, Plaintiff: Luke DeGrand, LEAD ATTORNEY, Tracey L. Wolfe, DeGrand & Wolfe, P.C., Chicago, IL.

For Chicago Youth Centers, an Illinois nonprofit corporation, J. Harry Wells, individually, Defendants: David M. Holmes, LEAD ATTORNEY, Wilson, Elser, Moskowitz, Edelman & Dicker, Chicago, IL; Angela McManus Sekerka, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Chicago, IL.

JEFFREY N. COLE, UNITED STATES MAGISTRATE JUDGE. Judge Lefkow.

Page 886

MEMORANDUM OPINION AND ORDER

JEFFREY N. COLE, UNITED STATES MAGISTRATE JUDGE.

On June 10, 2014, I granted the plaintiff's motion to compel production of certain

Page 887

materials for which the defendants had incorrectly claimed attorney/client and work-product privilege. Lee v. Chicago Youth Centers, 304F.R.D.242 , 2014 WL 2618537 (N.D.Ill. 2014). Familiarity with that opinion and the facts of the case are presumed and thus need not be repeated. Given my conclusion that the materials being withheld were not privileged, I did not reach the plaintiff's contention that, in any event, the defendants had waived whatever protection the withheld documents might otherwise have enjoyed, including the claim of inadvertent production.

Judge Lefkow overruled the defendant's objections except as to two documents. As to those, she sustained the objection based on privilege but instructed me to " consider whether defendants have waived attorney-client privilege with respect to the two documents at issue," namely Exhibit 7 and the first two sentences of Exhibit 16, both of which are emails. Exhibit 7 was not produced in discovery. Exhibit 16 is a response to Exhibit 7, which was produced, although the defendants claim the production was inadvertent.[1]

The plaintiff's motion to compel argued that the defendants' had waived any claim of attorney/client privilege, because they had taken " inconsistent and evolving positions regarding the privilege that they claim protects the materials." For example, they initially failed to identify any privilege. They then relied on the attorney/client privilege, but made no claim of work-product privilege until the third privilege log. [Dkt. # 68 at 13]. The motion then argued, citing appropriate cases, that the production of ESI materials could not be considered inadvertent given the facts of the case. Id.

The defendants' response to the motion to compel as it pertained to the claim of inadvertent production could scarcely have been more insouciant or inadequate. The response only cited Exhibits 15, 17, 19, 20, 22 and 35. [Dkt. #77]. In broad-brush strokes it asserted that it was " plain" that the defendants intended to maintain privilege over its communications with Dia Morgan and that it never intended to waive that privilege. But there was nothing plain or obvious about it. It certainly isn't accurate to say that any communication between a lawyer and a client is privileged. It isn't. Unless the communication between the lawyer and client is made in confidence for the purpose of obtaining legal advice, the privilege does not apply." Lee,

Page 888

2014 WL 2618537, 6 (citations omitted). In any event, even if it were plain that a particular communication was privileged, that determination would not ...


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