United States District Court, Southern District of Illinois
MEMORANDUM AND ORDER
STEPHEN C. WILLIAMS UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on State Farm’s motion to overrule the Tillery Group’s privilege assertions as to 413 documents (Doc. 236) related to documents subpoenaed from Douglas Wojcieszak and Tactical Investigations. The Tillery Group has filed a Response (Doc. 259) in opposition to the motion and State Farm has filed a Reply (Doc. 262). The Court took oral argument at a hearing on October 21, 2014. Further, the Court has reviewed in camera the 413 documents at issue in this dispute and issued its ruling at a hearing on December 4, 2014. The following memorializes the Court’s findings and rulings at that hearing on the issue of privilege.
II. Factual Background
Plaintiffs filed their class action Complaint on May 29, 2012 alleging two RICO claims against Defendants. Plaintiffs allege that State Farm devised a scheme to elect Judge Lloyd Karmeier to the Illinois Supreme Court, conceal its involvement in the financing and management of the campaign from Plaintiffs and the Illinois Supreme Court so that Judge Karmeier could preside over the Avery case which was then pending before the supreme court, and concealed their involvement by misrepresenting their involvement in two written briefs submitted to the Illinois Supreme Court in 2005 and 2011.
As part of the Avery case, Doug Wojcieszak provided three affidavits in 2005 and 2011 in which he made factual assertions regarding State Farm’s role in the Karmeier campaign (Doc. 13-6 at pp. 1-21). In his 2011 affidavit, he claimed that State Farm was responsible for at least $3.2 million in contributions to the Justice Karmeier campaign (Id. at pp. 4 and 11-12). As part of this litigation, in 2014, State Farm served subpoenas on Wojcieszak and his former firm, Tactical Investigations (Doc. 236-1 and 2). State Farm sought documents regarding Wojcieszak’s and Tactical Investigation’s investigations into the Karmeier election campaign. They sought all documents that Wojcieszak relied on or collected in forming his affidavits in the Avery case. Korein Tillery, Randall Bono, Brad Lakin, Jeff Cooper, and John Simmons (hereinafter “the Tillery Group”) objected to the production of 413 documents they claim to be privileged under a prior agreement with Wojcieszak and Tactical Investigations.
On November 1, 2003, Korein Tillery entered into an agreement with Douglas Wojcieszak and his business partner Tom Denton to provide litigation support in the case Price v. Philip Morris (Doc. 259-2). The agreement protected as confidential and prevented from disclosure any information related to the business conducted by Tillery for a period of ten years after the agreement had ended (Id. at ¶ 6C). The agreement ended in February 2006, thus the non-disclosure part of the agreement remains in effect until February 2016 (Doc. 259-1 at ¶ 4). Korein Tillery argues that documents and confidential communications between Tillery and Wojcieszak are protected as work product as Wojcieszak was hired to provide litigation support in the Price case. The rest of the Tillery Group also worked with Wojcieszak under the agreement with Tillery to provide support for political efforts regarding anti-tort reform efforts and the 2004 Karmeier/Maag election. The Tillery Group argues that those documents labeled with a First Amendment privilege in their privilege log reflect political activities, strategies, or communications in which the group engaged with Wojcieszak and Tactical Investigations.
State Farm seeks the documents listed in the Tillery Group’s privilege log because they believe that the documents will show that Wojcieszak presented a nearly identical conspiracy theory regarding the funding of Justice Karmeier’s 2004 campaign to the group as it did to the Plaintiff’s in Avery, except Wojcieszak presented to the Tillery Group that Philip Morris, rather than State Farm, funded the Karmeier campaign. State Farm argues that the same dollars to Karmeier’s campaign that Wojcieszak attributed to Philip Morris, he now attributes to State Farm in this case. State Farm believes the documents will show that Wojcieszak gave contradictory sworn statements in the Avery case and to the Tillery Group.
The Tillery Group objects to the production of 413 documents it argues are protected under work product and First Amendment privileges. The Court will discuss each purported privilege in turn.
A. First Amendment
The Tillery Group argues that certain documents are protected from disclosure under the First Amendment privilege. “[T]he right of association is a ‘basic constitutional freedom, ’ that is ‘closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society.’” Buckley v. Valeo, 424 U.S. 1, 25 (1976) (quoting Shelton v. Tucker, 364 U.S. 479, 486 (1960)). Compelled production of political associations and their activities can have a chilling effect on this right. Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir. 2010). A First Amendment privilege, thus, applies to discovery issues and the privilege protects “against the disclosure of the identity of members and the content of internal communications between members, employees, and agents of associations.” Greenvile v. Syngenta Crop Prot., Inc., 11-MC-10, 2011 WL 5118601, at * 6 (C.D. Ill. Oct. 27, 2011) (citing Perry, 591 F.3d at 1162-63). The privilege is not absolute, but if an association is “engaged in advocating controversial views and the publication of its internal files would expose members to retaliation for those views” an association may claim a privilege against disclosure of materials. Marrese v. American Academy of Orthopaedic Surgeons, 726 F.2d 1150, 1159 (7th Cir. 1984). In order to claim the privilege, the association must make a prima facie showing that producing the documents “will result in (1) harassment, membership withdrawal, or discouragement of new members, or (2) other consequences which objectively suggest an impact on, or ‘chilling’ of, the members’ association rights.” Perry, 591 F.3d at 1160 (internal quotations omitted) (quoting Brock v. Local 375, Plumbers International Union of America, AFL-CIO, 860 F.2d 346, 350 (9th Cir. 1988)). The party seeking the documents must then show that the information is essential to their case and could not [be] “obtained by other means that would be less likely to discourage such advocacy.” Marrese, 726 F.2d at 1159; Greenville, 2011 WL 5118601, at * 6 (citing United States v. Citizens State Bank, 612 F.2s 1091, 1094 (8th Cir. 1980). The Court looks at three factors including: “(1) the relevance of the information sought, (2) the need for that information, and (3) the extent of injury that disclosure may cause to associational rights.” In re Heartland, 2011 WL 1839482, at * 3 (citations or quotations omitted). The information must be so relevant that it “goes to the heart of the matter.” Id.
Here, the Tillery Group has made their prima facie showing for the First Amendment privilege. In an affidavit submitted to State Farm, Tillery has shown that he engages in political advocacy that deals with controversial views and that he has a legitimate fear of repercussion if his associational activities were known. He specifically declared in his affidavit that he associates with others and engages in campaigning and fundraising for candidates and issues with which he agrees and campaigns against issues he does not agree with (Doc. 236-21 at ¶ 3). The candidates and issues he supports are controversial because he participates in judicial elections and, as an attorney, he may appear in front of those judges in the future (Id. at ¶ 5). He also associates with clients and referring counsel and, thus, he has shown a legitimate fear that if his support or opposition to candidates is known it could negatively affect his relationship with clients and other counsel who hold the opposite view of that candidate (Id. at ¶ 5). Tillery has also shown that disclosure of his associational activities would chill his speech because he would not participate in campaigns if the information could be disclosed (Id. at ¶ 7). State Farm has acknowledged that other members of the Tillery Group, including Messrs. Cooper, Simmons, Bono, and Lakin submitted identical affidavits to Tillery’s and a review of the documents reveal that these communications involved this core group of people who were involved in election strategy (Doc. 236 at p. 16 fn. 21). Perry, 591 F.3d at 1165 n.12. Thus, the Court finds these declarations to be sufficient evidence of their prima facie burden. See Perry, 591 F.3d at 1164 (finding that the declaration “creates a reasonable inference that disclosure would have the practical effects of discouraging political associations”); City of Greenvile, 2011 WL 5118601, at * 7 (collecting cases).
The Court also finds Tillery Group’s fears to be legitimate given their positions as attorneys in the community. As the Tillery Group points out, as attorneys they would be less likely to campaign if their communications and associations with a campaign were allowed to be disclosed as that might affect their relationship with the their clients and other attorneys who may have different political views. And, more importantly, if their communications and associations involving a judicial race were exposed, that could negatively impact their ability to practice in front of a judge that they campaigned against. The Court notes that a review of the documents show that the information would not simply reveal who the Tillery Group voted for or provided money to, but would show the extent of those activities and behind the scenes election campaigning and discussions which would pose a legitimate fear of negative consequences. The Court finds that a highly contested supreme court judicial race is a controversial political issue and disclosures would deter the Tillery Group’s participation for this very reason. Perry, 591 F.3d at 1162. The Court also notes that a subsequent affidavit from Tillery shows that Tactical Investigations assisted him and other members of the Tillery Group with this political advocacy, particularly advocacy associated with ...