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Rao v. Board of Trustees of University of Illinois

United States District Court, N.D. Illinois

October 20, 2016

DR. JASTI RAO, Plaintiff,
v.
THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, et al., Defendants.

          Virginia M. Kendall, Judge

          ORDER

          Susan E. Cox, Magistrate Judge

         For the 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.

         BACKGROUND

         For the 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 here.

         The 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.)

         One 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 10:11-12:4.)

         Second, 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.

         A short 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.)

         The 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.

         In 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, 2016.

         Following 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.

         DISCUSSION

         I. Ms. Jasti's Communications Are Not Protected by the Attorney-Client Privilege

         “In 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.

         A. ...


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