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O'Toole v. Perez

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

September 16, 2016

THOMAS O'TOOLE, Plaintiff,
THOMAS E. PEREZ, Defendant,


          Sidney I. Schenkier United States Magistrate Judge

         Plaintiff 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.


         We 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.).

         Mr. 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).

         As part 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.

         One category of documents Mr. OToole seeks is "litigation holds, " which the Secretary has elected to produce.[1] 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, [2] 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, [3] 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, [4] which the Secretary asserts are protected by the deliberative process privilege. We address each category in turn.


         We begin by setting forth the governing principles for determining whether the documents at issue are protected by the privileges the Secretary asserts.

         Seventh Circuit law states that the attorney-client privilege applies:

(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)).

         Communications 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 ...

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