United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
I. Schenkier United States Magistrate Judge
Thomas O'Toole moves to compel the production of all
documents identified in Defendant Secretary of Labor Thomas
Perez's ("Secretary") Revised Privilege Log
(doc. # 65: PL's Mot.). The Secretary has now produced
some of the documents originally listed on the log, but
argues the Court should deny Mr. O'Toole's motion
because the remaining documents are protected by the
attorney-client privilege, work product doctrine, or
deliberative process privilege (doc # 67: Def.'s Resp.).
After reviewing the privilege log and conducting an in
camera review of the remaining documents in dispute, we
conclude each of the remaining documents is privileged and
protected from disclosure.
begin with a brief description of the case. Mr. O'Toole
brought this suit against Sharon A. Isaac, Gian-Thu Thi
Nguyen, Mary Gail Marcotte, and the Secretary (doc. # 20).
All defendants except the Secretary were dismissed on June
25, 2014 (Id.).
O'Toole is an employee in the Department of Labor
("DOL"), Bureau of Labor Statistics
("BLS"), working in the Chicago Regional Office
(doc. # 46: Amend. Ans, to Amend. Compl. ¶ 1). Mr.
O'Toole suffers from Diabetes Mellitus and has previously
received a recommendation from his doctor that he should eat
meals at regularly scheduled times (Id. ¶¶
27-28). Mr. O'Toole alleges that it is the policy of
BLS's Chicago Regional Office to require employees to
work through meals and outside of normal duty hours, which
interfered with his ability to eat meals on a regular
schedule and affected his blood glucose levels. Mr.
O'Toole alleges that, as a result, he experienced an
uncontrolled diabetic state in June 2012 (doc. # 33: Amend.
Compl. ¶¶ 29-31). Mr. O'Toole alleges that he
sought a reasonable accommodation in June 2012, which was
denied (Id. ¶¶ 31-32; Amend. Ans. to
Amend. Compl. ¶¶ 31-32). Mr. O'Toole claims
that the denial of his requested accommodation constituted a
violation of the Rehabilitation Act (Amend. Compl.
¶¶ 26, 31-33). Mr. O'Toole claims the Secretary
then harassed and retaliated against him in violation of the
Rehabilitation Act by allegedly subjecting him to heightened
scrutiny, disciplinary charges, and fabricating errors on his
evaluation forms; denying a within grade pay increase;
placing him on administrative leave on June 9, 2014; and
removing him from his position on August 15, 2014
(Id. ¶¶ 34-44). Mr. O'Toole also
alleges that the Secretary violated his duty to preserve
evidence relevant to his Equal Employment Opportunity
("EEO") claim and the present action, and also
willfully destroyed and tampered with official government
records (Id. ¶¶ 45-48).
of the discovery process, the Secretary served a log on Mr.
O'Toole identifying documents withheld from production
based on the assertion of privilege. This Court ordered the
Secretary to serve on Mr. O'Toole a revised privilege log
(doc. # 64). The Court further ordered that if disputes
remained after the meet and confer process, defendant was to
deliver any challenged documents that were withheld on
privilege grounds to chambers for in camera review,
along with a copy of the privilege log (Id.). The
parties also were ordered to file memoranda addressing their
respective position on the issue of privilege (id),
which they have done. The meet and confer process did not
resolve the parties' disagreements, and on July 21, 2016,
Mr. OToole filed the present motion to compel all documents
identified in the privilege log.
category of documents Mr. OToole seeks is "litigation
holds, " which the Secretary has elected to
produce. Thus, these documents are no longer in
issue. The Secretary continues to assert privilege for three
remaining categories of documents that Mr. OToole seeks: (1)
emails between DOL counsel and DOL employees regarding record
preservation,  which the Secretary argues are protected
by attorney-client privilege and the work product doctrine;
(2) a litigation memorandum prepared by the DOL's Office
of the Solicitor for the Assistant United States Attorney
assigned to the case,  which the Secretary argues is protected by
the attorney-client privilege and work product doctrine; and
(3) a draft final agency decision from the DOL's Civil
Rights Center and related emails,  which the Secretary asserts
are protected by the deliberative process privilege. We
address each category in turn.
begin by setting forth the governing principles for
determining whether the documents at issue are protected by
the privileges the Secretary asserts.
Circuit law states that the attorney-client privilege
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by
the legal adviser, (8) except the protection be waived.
United States v. Lawless, 709 F.2d 485, 487 (7th
Cir. 1983). The party asserting the attorney-client privilege
has the burden of establishing the elements on a
document-by-document basis. Id.
"[A]ttorney-client privilege serves the important policy
of fostering 'full and frank communication between
attorneys and their clients and thereby promote[s] broader
public interests in the observance of law and administration
of justice.'" Evans v. City of Chicago, 231
F.R.D. 302, 311 (N.D. Ill. Aug. 25, 2005) (quoting Upjohn
Co. v. United States, 449 U.S. 383, 389(1981)).
from an attorney to his or her client are not automatically
privileged, but they will be privileged:
(1) if it is shown that the client had a reasonable
expectation in the confidentiality of the statement; or, put
in another way, if the statement reflects a client
communication that was necessary to obtain informed legal
advice (and) which might not have been made absent the
privilege . . .; or (2) if the ...