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Charvat v. Valente

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

July 1, 2015

PHILIP CHARVAT, on behalf of himself and others similarly situated, Plaintiff,
v.
ELIZABETH VALENTE, et al., Defendants.

MEMORANDUM OPINION AND ORDER

MARY M. ROWLAND, Magistrate Judge.

Plaintiff seeks an order compelling defendant Carnival Corporation to produce certain documents listed on a privilege log and withheld as privileged. (Dkt. 303 (Mot.) at 13 & Ex. 17 (Privilege Log)). For the reasons stated below, the motion is granted in part and denied in part.

I. DISCUSSION

In January 2011, Carnival received four complaints from consumers, asserting that defendant Resort Marketing Group (RMG) was engaged in prohibited telemarketing activities and misrepresenting its relationship with Carnival. (Dkt. 329 (Resp.) at 5). During its investigation into these consumer complaints, Carnival retained outside counsel to advise the most appropriate method for preventing RMG from making further misrepresentations. ( Id. 5; see Mot. 6-7). Carnival asserts that it has "produced a majority of the communications related to [its] investigation." ( Id. 5 & n.4). Carnival contends, however, that the 14 documents listed on the Privilege Log[1] "relate specifically to legal advice sought by Carnival from outside counsel" and are properly withheld as privileged. (Resp. 5).

The purpose of the attorney-client privilege "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 Co. v. United States, 449 U.S. 383, 389 (1981). "However, since the privilege has the effect of withholding relevant information from the fact-finder, it applies only where necessary to achieve its purpose. Accordingly it protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege." Fisher v. United States, 425 U.S. 391, 403 (1976). Thus, "because the privilege is in derogation of the search for the truth, it is construed narrowly." Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007) (citation omitted); see United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983) (scope of privilege should be "strictly confined within the narrowest possible limits"); Dexia Credit Local v. Rogan, 231 F.R.D. 268, 272 (N.D. Ill. 2004) ("The Illinois Supreme Court has... stated that it is the attorney-client privilege, not the duty to disclose, that is the exception and, therefore, the privilege ought to be strictly confined within its narrowest possible limits.") (citation omitted).

After conducting an in camera review of the documents described on the Privilege Log and considering the parties' arguments, the Court rules as follows.

A. Documents 1, 2, 6, and 8

Documents 1, 2, 6, and 8 contain correspondence between Carnival's outside counsel and Carnival employees for the purpose of investigating the legality of RMG's use of Carnival's trade name in its telephone solicitations. (Resp. 7; see Privilege Log). Plaintiff concedes that these documents are privileged. (Mot. 7, 11). In any event, the Court finds that these documents are protected by the attorney-client privilege. See Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 619 (7th Cir. 2010) ("[F]actual investigations performed by attorneys as attorneys fall comfortably within the protection of the attorney-client privilege.") (emphasis in original).

B. Documents 3 and 7

Documents 3 and 7 are emails between Nora Hernandez, a Carnival paralegal, and other Carnival employees, for the purpose of either gathering information at the request of outside counsel or reflecting on counsel's legal advice. (Mot. 11; Resp. 8; see Privilege Log). Plaintiff contends that "a paralegal is not an employee, and communications with a paralegal are not entitled to any more protection than communications with any other non-attorney." (Mot. 11) (quoting Naham v. Haljean, No. 08 C 519, 2010 WL 3025574, at *2 (N.D. Ill. July 30, 2010)). But Naham involved a pro se plaintiff who had hired a paralegal and then argued that their communications were privileged. 2010 WL 3205574, at *2. The Naham court concluded that the attorney-client privilege did not apply because there was no attorney involved in the relationship between Naham and the paralegal. Id. Regardless, the attorney-client privilege attaches to communications concerning matters sought by counsel or for the purpose of disseminating legal advice. Stopka v. Alliance of Am. Insurers, No. 95 C 7487, 1996 WL 204324, at *5 (N.D. Ill. Apr. 25, 1996) ("The attorney-client privilege applies to communications made by corporate employees concerning matters pertinent to their corporate duties if sought by the corporation's attorney in order to formulate and render legal advice to the corporation.") (citing Upjohn, 449 U.S. at 394); Sneider v. Kimberly-Clark Corp., 91 F.R.D. 1, 5 (N.D. Ill. 1980) (finding documents reflecting the necessary dissemination of legal information among non-attorneys privileged).

C. Documents 4, 9-10, 12, and 15-16

Plaintiff argues that because documents 4, 9-10, 12, and 15-16 are communications between Carnival employees who are neither attorneys nor paralegals, they are not protected by attorney-client privilege. (Mot. 11-12). After carefully reviewing these communications, however, the Court finds that they are all directly related to gathering the information sought by outside counsel or reflect upon counsel's legal advice. See Stopka, 1996 WL 204324, at *5; Sneider, 91 F.R.D. at 5.

D. Documents 13 and 14

Documents 13 and 14 are email communications exchanged between Angie Morales, another Carnival paralegal, and Alexandra Missagia, director of worldwide sales for Carnival, summarizing conversations they had with Tom Panici, account manager with responsibility for RMG, in March 2011. Morales drafted the email with the ...


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