United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. Kim United States Magistrate Judge.
Eric Rejdak and Dariusz Klimek have moved pursuant to Federal
Rule of Civil Procedure 26(c) for a protective order allowing
them to avoid providing the information requested in
Defendant Irwin Industrial Tool Co.'s
(“Irwin”) Request for Production Number 14
(“Request 14”) and excusing them from submitting
a privilege log in response to Request 14. For the following
reasons, Plaintiffs' motion is denied.
moving for a protective order, Plaintiffs argue that they
should be excused from producing a privilege log in response
to Request 14 because, according to them, a privilege log
would be impossible to create and because it inevitably would
disclose protected attorney work product. As ordered, the
parties filed a status report on August 10, 2016, (R. 74),
advising the court of written discovery issues they were
unable to resolve on their own. One of the discovery issues
noted in the report was whether Plaintiffs should have
produced a privilege log when objecting to producing
documents in response to Request 14. On August 22, 2016,
Plaintiffs again objected in court to producing a privilege
log. The court permitted Plaintiffs to brief this issue. (R.
their motion for protective order, Plaintiffs first object to
what they characterize as the overly broad nature of Request
14, which seeks the following information:
Any document You obtained from, or to which You have access
through, any litigation clearinghouse, or any other
association, organization group or individual, including
without limitation any one operated by the American Trial
Lawyers Associations or the Attorney's Information
Exchange Group, that concerns, involves or in any way related
to Newell; the Product; the Cylinder; the Torch; any product
or exemplar designed, tested, created, manufactured,
assembled, sold, or distributed by Newell; or any product or
exemplar that you contend is the same or similar model as the
Product, Cylinder, or Torch.
(R. 82, Pl.'s Mot. at 1.) Plaintiffs contend that Request
14 is overly broad and seeks to target their attorneys'
litigation strategies by probing into the documents the
attorneys gathered in anticipation of the current litigation.
(Id. at 2.) Plaintiffs further argue that producing
a privilege log in response to Request 14 necessarily would
disclose their attorneys' work product because, they say,
even listing the documents in their possession would reveal
their litigation strategy. In other words, according to
Plaintiffs, providing a list of responsive documents in a
privilege log would give Irwin the exact information to which
they say it is not entitled. (Id. at 9.)
Rule of Civil Procedure 26(c)(1) allows the court, for good
cause, to issue an order protecting a party or person from
“annoyance, embarrassment, oppression, or undue burden
or expense.” A protective order that limits discovery
requires the moving party to show good cause by submitting
“a particular and specific demonstration of fact, as
distinguished from stereotyped and conclusory
statements.” Gulf Oil Co. v. Bernard, 452 U.S.
89, 102 n.16 (1981) (quotation and citation omitted). The
burden of showing good cause rests on the moving party.
Pfizer Inc. v. Apotex Inc., 744 F.Supp.2d 758, 762,
766 (N.D. Ill. 2010). “A showing of good cause is only
unnecessary when the court's review of the record makes
plain the need for a protective order.” Andrew
Corp. v. Rossi, 180 F.R.D. 338, 342 (N.D. Ill. 1998).
respect to Plaintiffs' initial objection that Request 14
is overly broad, the hyperbolic language they employ in
support of that objection does not meet the good-cause
threshold. According to Plaintiffs, “Request 14 covers
every document created in the history of mankind.” (R.
82, Pls.' Mot. at 2.) They double down on that argument
in their reply, where they assert that “there is not a
document on Earth which is not covered by Request
14.” (R. 89, Pls.' Reply at 3 (emphasis in
original).) It is hard to take such assertions seriously.
Surely, newly minted Nobel Laureate Bob Dylan's songbook
would not be responsive to Request 14, nor would, say, a
tourist's map of Chicago or a recipe for chocolate chip
cookies. It may be that Plaintiffs have legitimately objected
to Request 14 as being overly broad, but it is unreasonable
to suggest that a request clearly aimed at documents
concerning Newell and certain specific products can be read
to encompass the totality of humanity's written record.
to Plaintiffs' more serious argument, that Request 14
seeks documents protected by the work product doctrine,
without more information the court is unable to fully
evaluate their objection. Plaintiffs make a conclusory
allegation that Newell seeks the information in Request 14 so
that it can get a “free ride” on Plaintiffs'
attorneys' work product. (R. 82, Pls.' Mot. at 4
(citation omitted).) Specifically, they argue that Request 14
seeks to gain access to documents their attorneys curated in
anticipation of this litigation, and therefore, turning over
this group of documents would necessarily reveal their
attorneys' thought processes.
work product doctrine recognizes that “[n]ot even the
most liberal of discovery theories can justify unwarranted
inquiries into the files and the mental impressions of an
attorney.” See Hickman v. Taylor, 329 U.S.
495, 511 (1947). The doctrine is designed to protect from
disclosure a lawyer's work reflected “in
interviews, statements, memoranda, correspondence, briefs,
mental impressions, personal beliefs, ” and other
things which the lawyer prepares with an “eye toward
litigation.” Id. The work product doctrine has
been codified in Federal Rule of Civil Procedure 26(b)(3),
which specifies that “[o]rdinarily, a party may not
discover documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another
party or its representative.” Recognizing that the rule
targets documents that are prepared by a party or its
attorneys, Plaintiffs point to a number of out-of-circuit
cases to support their argument that documents prepared by
third parties and that otherwise would not be protected
become work product when selected and compiled by an
attorney. But in cases like Omaha Public
Power and James Julian, the parties seeking
discovery went after subsets of documents that had already
been produced, consisting of documents segregated from the
production by their attorneys to prepare a witness for
deposition. See Omaha Pub. Power Dist. v. Foster Wheeler
Corp., 109 F.R.D. 615, 616 (D. Neb. 1986); James
Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D.
Del. 1982). In both of those cases, the court considered the
subsets of previously disclosed documents to be work product
because the purpose of the request was to scrutinize the
attorneys' document-selection process for preparing
witnesses for depositions. Omaha Pub. Power Dist.,
109 F.R.D. at 615-16; James Julian, Inc., 93 F.R.D.
at 144 (noting that plaintiff did not object to producing
documents in binder, but only objected to producing binder
itself, which represented counsel's selection and
ordering decisions). In other words, because the plaintiffs
had already obtained documents through discovery, requiring
the defendants to produce a subset opposing counsel had
culled for a specific purpose would convey no additional
information other than the attorneys' strategies in
organizing those documents. See also Sporck v. Peil,
759 F.2d 312, 315-16 (3d Cir. 1985) (holding that the
selection process of already-produced documents in preparing
a witness for deposition constitutes attorney work product).
other hand, in Shelton v. American Motors Corp., 805
F.2d 1323, 1325 (8th Cir. 1986)-another case Plaintiffs rely
on here-opposing counsel attempted to depose the
defendant's in-house counsel to determine the existence
of relevant documents. In the deposition, in-house counsel
refused to answer questions relating to the existence of
specific documents in the fear that acknowledging her memory
of certain documents would reveal to her opponent which of a
large swath of documents she found significant. Id.
at 1328-29. The court noted that the information the deposing
party sought could be or already had been obtained through
other means of discovery. Id. at 1327. In those
circumstances, the court held that revealing her recollection
would expose her legal theories concerning the case.
Id. at 1329. Accordingly, the court concluded that
the attorney was entitled to refuse to answer the questions
on the basis of the work product doctrine. Id.
courts in this Circuit have concluded that the mere assembly
of documents without any additional information that would
reveal the attorney's thought process is subject to
discovery. See E.E.O.C. v. Jewel Food Stores, 231
F.R.D. 343, 347 (N.D. Ill. 2005). That is because “the
mere assembly of documents, without more, does not indicate
that the attorney placed special weight on those documents as
opposed to documents that were not obtained, and does not
reveal which of the assembled documents the attorney deems
important.” Id. Especially when a vast number
of documents are involved in the discovery request, the
possibility of the opposing party discerning any litigation
strategy is highly unlikely. See Portis v. City of
Chicago, No. 02 CV 3139, 2004 WL 1535854, at *2 (N.D.
Ill. 2004). Moreover, the mere act of gathering documents
from third parties “does not ‘gloss' the
documents with an attorney's mental impressions.”
See Kartman v. State Farm Mut. Auto Ins. Co., 247
F.R.D. 561, 564 (S.D. Ind. 2007) (quotation omitted).
Although the court cannot determine at this time whether
Request 14 targets protected information, the mere possession
of documents by Plaintiffs' attorneys does not elevate
otherwise unprotected documents to the status of work
reason this court is unable to fully evaluate the work
product objection is because Plaintiffs seek to be absolved
of the obligation to produce a privilege log, arguing that
even broadly characterizing the responsive documents will
reveal their attorneys' strategies. (R. 82, Pls.'
Mot. at 2, 9-10.) As an initial matter, they reiterate their
hyperbolic over-breadth objection, arguing that were they
required to submit a privilege log it would consist of one
word that says, “Everything.” (Id. at
2.) That argument actually undercuts their privilege
assertion, because certainly they can't mean that every
document in the history of mankind is subject to the work
product privilege simply because it might pass through their
attorneys' hands. More importantly, Federal Rule of Civil
Procedure 26(b)(5) requires parties to produce a privilege
log “[w]hen a party withholds information otherwise
discoverable by claiming that the information is privileged
or subject to protection as trial-preparation material . . .
.” The privilege log must “(i) expressly make the
claim; and (ii) describe the nature of the documents,
communications, or tangible things not produced or
disclosed-and do so in a manner that, without revealing
information itself privileged or protected, will enable other
parties to assess the claim.” In arguing that a
privilege log necessarily would disclose protected
information, Plaintiffs overlook the mandatory language in
Rule 26(b)(5), and point to several out-of-circuit cases that
are factually distinct from the current situation. For
example, in Schwarzkopf Technologies Corporation v.
Ingersoll Cutting Tool Company, 142 F.R.D. 420, 422-23
(D. Del. 1992), the party responding to discovery produced a
privilege log listing “collections” of documents
but not identifying the documents individually. The court
declined to compel the plaintiff to provide a more detailed
log, in order to protect ...