United States District Court, N.D. Illinois
DR. JASTI RAO, Plaintiff,
THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, et al., Defendants.
Virginia M. Kendall, Judge
E. Cox, Magistrate Judge
reasons discussed below, the Court orders as follows: 1) Ms.
Siva Jasti must produce all documents requested in
Defendants' third party subpoena on or before October 24,
2016; and 2) Defendants must produce the two investigative
files of ethics investigations that were referred to outside
counsel on or before October 24, 2016.
purposes of this Order, the Court assumes familiarity with
the background facts of the case. On September 6, 2016, the
day before fact discovery closed, the parties contacted this
Court to schedule a discovery conference regarding various
issues on which they had reached impasse. The discovery
conference was held on September 14, 2016. Prior to the
discovery conference, the parties provided a joint submission
on their discovery disputes on September 9, 2016. The
submission raised three issues, two of which are relevant
first issue involved a third-party subpoena seeking documents
from the Plaintiff's wife, Ms. Siva Jasti. In particular,
Defendants sought production of Ms. Jasti's
correspondence with Jeff Rock (Plaintiff's former
attorney), and her children (who are both attorneys). Ms.
Jasti (who is represented by Plaintiff's current
attorney) objected to these requests, arguing that those
communications were protected by the attorney-client
privilege. Plaintiff posits two primary theories as to why
these communications are privileged: 1) the communications
are protected by the “common interest” doctrine;
2) Ms. Jasti's presence on the communications between
Plaintiff and his attorneys does not destroy privilege
because she was “essential to the legal
representation” of Plaintiff. (Dkt. 192 at 4.)
complicating factor is Ms. Jasti's deposition testimony.
Ms. Jasti was asked at her deposition “Are you
represented by your children” and unequivocally
answered “No.” (Dkt. 193-2 at 16:10-11.) She
further testified that “when [Defendants] terminated
[Plaintiff], I talked to our children. We went through
whatever happened that day, we discussed with [sic] as a
family, not like attorneys or anything like that.”
(Dkt. 193-2 at 16:18-21.) She was also asked “Were you
represented by Jeff Rock at any time?” and similarly
answered “No.” (Dkt. 193-2 at 10:7-10.) Ms. Jasti
then proceeded to testify regarding the substance of the
conversations she had with Mr. Rock. (Dkt. 193-2 at
Plaintiff sought two investigative files that were created by
outside law firms who had performed internal investigations
of University employees who were accused of wrongdoing.
Plaintiff maintains that these files are necessary for
Plaintiff to analyze the treatment of other employees who are
similarly situated to him (i.e., comparator
employees). Defendant claims that these files are protected
by the work product doctrine, and should not be produced.
background regarding these files is necessary to adequately
understand this issue in context. The potential discovery of
investigative files was first brought to this Court's
attention at a discovery conference on July 11, 2016. At that
conference, the parties sought clarity on the questioning
that would be allowed at the upcoming deposition of Donna
McNeely, the head of the University's ethics office. This
Court held that Plaintiff would be allowed to ask
“about any ethics investigations that were raised to
the university counsel's office for referral to an
outside law firm for investigation.” (Dkt. 155.) The
Court also noted that any decision on the production of
materials and documents related to the ethics investigations
could not occur until Ms. McNeely's deposition was
finished. At a hearing on August 3, 2016, Plaintiff reported
that Ms. McNeely's deposition revealed that two such
files existed, and sought to have Defendants produce those
files. (Dkt. 166 at 4:25-5:9.) The Defendants indicated they
did not “expect problems” producing those items,
but needed to discuss the matter with their client first.
(Dkt. 166 at 5:16-20.) The Court indicated that it understood
counsel's need to confer with her client, but noted that
“[i]f you do have an objection, bring it to me
immediately.” (Id. at 6:7-8.) In the minute
order following the hearing, the Court ordered the Defendants
to produce those files, subject to any objections, which were
“to be brought to the Court immediately by contacting
chambers.” (Dkt. 162.)
Court did not hear anything from either party for two weeks.
On August 17, 2016, the Plaintiff filed an objection to this
Court's order of August 3, 2016; Defendants raised no
objections during this time period, despite the Court's
admonition that such objections be raised
“immediately.” Defendants filed a response to
Plaintiff's objections on August 24, 2016, which included
a footnote stating that “Defendants could not and would
not have agreed to produce these files as they are clearly
privileged and/or contain work product and the University has
determined not to waive these two files.” (Dkt. 168 at
2 n.1.) However, the Defendants did not raise this issue
before Judge Kendall during the hearing on Plaintiff's
objection, nor did the parties mention this dispute during a
motion hearing held before this Court on August 26, 2016.
fact, the issue was not brought to this Court's attention
until the parties' joint submission of September 9, 2016,
in advance of the discovery conference set for September 14,
the discovery hearing, the Court ordered briefing on the two
issues described above. The Court has reviewed the
parties' briefs and will take up the parties'
arguments in turn below.
Ms. Jasti's Communications Are Not Protected by the
order for the attorney-client privilege to attach, the
communication in question must be made: (1) in confidence;
(2) in connection with the provision of legal services; (3)
to an attorney; (4) in the context of an attorney-client
relationship.” United States v. BDO Seidman,
LLP, 492 F.3d 806, 815 (7th Cir. 2007). The
party asserting the privilege bears the burden of showing
that it applies and has not been waived. Whitney v.
Tallgrass Beef Co. LLC, 2015 WL 3819373, at *2 (N.D.
Ill. June 18, 2015). Plaintiff makes two argument to support
his position that Ms. Jasti's communications with Mr.
Rock and/or her children are protected by the attorney-client
privilege: 1) Ms. Jasti had an attorney-client relationship
with her children and Mr. Rock, and, therefore, the
communications were privileged under the “common
interest doctrine, ” or, alternatively, 2) Ms.
Jasti's presence as a third party on communications with
Plaintiff and his attorneys did not destroy the privilege.