United States District Court, N.D. Illinois, Eastern Division
IN RE FLUIDMASTER, INC., WATER CONNECTOR COMPONENTS PRODUCTS LIABILITY LITIGATION MDL No. 2575
MEMORANDUM OPINION AND ORDER
Jeffrey T. Gilbert United States Magistrate Judge
Fluidmaster, Inc., (“Fluidmaster”) maintains that
approximately 10, 000 documents requested by the purported
plaintiff class in this case (“Plaintiffs”) are
protected from production by the attorney-client privilege
and the work product doctrine. [ECF No. 328-3], ¶ 4.
According to Fluidmaster, the small number of documents being
withheld-at least in comparison to the roughly 180, 000
documents it has produced, which total over 600, 000 pages,
id. ¶ 2-shows that the company has
“maintained a conservative and valid approach to
privilege.” [ECF No. 328], at 1. Plaintiffs have a
different perspective, claiming that Fluidmaster has asserted
privileges on a “sweeping basis” and provided
seriously deficient privilege logs that do not support its
assertions. [ECF No. 343], at 1. After months of meeting and
conferring that narrowed but did not completely resolve the
privilege dispute, Fluidmaster filed a Motion for Protective
Order Preventing Disclosure of Its Attorney-Client Privileged
and/or Protected Work Product Documents. [ECF No. 328].
considering the merits of Fluidmaster's motion, the Court
first must address what documents are encompassed by that
motion. Plaintiffs say Fluidmaster is seeking “a
protective order over approximately 10, 000
documents”-i.e., all of the documents that
Fluidmaster has withheld as privileged. [ECF No. 343], at 1.
Fluidmaster says it is seeking “a protective order
preventing disclosure of privileged documents Plaintiffs
claim should be produced.” [ECF No. 328], at 1
(emphasis added). In its opening brief filed in support of
its motion, Fluidmaster identifies by Bates-number 112
documents that it says Plaintiffs are seeking and it is
withholding. Id. at 4. In addition, Fluidmaster has
provided the Court with excerpts from its privilege log that
include the 112 documents identified by Bates-number in its
opening brief and just a handful of other documents. [ECF No.
328-18]. The Court interprets this to mean that, after the
meet and confer process, Plaintiffs are not disputing
Fluidmaster's invocation of the attorney-client privilege
or work product doctrine as to the vast majority of the
documents Fluidmaster is withholding from production on those
grounds. If a dispute does exist as to these other documents,
neither party has asked the Court to resolve it. There is
nothing in the record before the Court on Fluidmaster's
motion that indicates Plaintiffs are claiming, or ever have
claimed, that Fluidmaster should produce every single
document it is withholding.
these reasons, the Court will address the request for relief
in the motion Fluidmaster actually filed. The Court cannot
address privilege issues with respect to documents not among
the 112 listed on Fluidmaster's excerpted privilege log
provided to the Court. In other words, the Court will confine
itself to the dispute presented by Fluidmaster's Motion
for Protective Order and not weigh into the hint of a larger
dispute without an adequate record upon which to do so.
Rule of Civil Procedure 26(c) permits a party to move for a
protective order forbidding disclosure or discovery of
certain materials. Fed.R.Civ.P. 26(c). The court, in turn,
may grant such a motion where there is “good
cause” to enter the protective order. Clark v. City
of Chicago, 2010 WL 9941375, at *1 (N.D. Ill. Oct. 13,
2010) (quoting Fed.R.Civ.P. 26(c)). The movant bears a heavy
burden to prove, through specific facts, that good cause
exists. Glob. Material Techs., Inc. v. Dazheng Metal
Fibre Co., 133 F.Supp.3d 1079, 1084 (N.D. Ill. 2015);
Chicago Mercantile Exch., Inc. v. Tech. Research Grp.,
LLC, 276 F.R.D. 237, 241 (N.D. Ill. 2011). Ultimately,
the court must exercise its sound discretion to determine
whether a protective order should be entered and, if so, what
degree of protection is appropriate. Nieves v. OPA,
Inc., 948 F.Supp.2d 887, 891 (N.D. Ill. 2013); State
Farm Fire & Cas. Co. v. Nokes, 263 F.R.D. 518, 521
(N.D. Ind. 2009); Felling v. Knight, 211 F.R.D. 552,
554 (S.D. Ind. 2003).
The California Attorney-Client Privilege
parties agree that California law governs the attorney-client
privilege issues now before the Court. See Fed. R.
Evid. 501. Under California law, the attorney-client
privilege is a product of statute. Fay Ave. Properties,
LLC v. Travelers Prop. Cas. Co. of Am., 2014 WL 2738682,
at *5 (S.D. Cal. June 17, 2014). Specifically, § 954 of
the California Evidence Code “confers a privilege on
the client ‘to refuse to disclose, and to prevent
another from disclosing, a confidential communication between
client and lawyer.'” Ivy Hotel San Diego, LLC
v. Houston Cas. Co., 2011 WL 4914941, at *3 (S.D. Cal.
Oct. 17, 2011) (quoting Cal. Evid. Code § 954).
determining whether the attorney-client privilege applies,
California law employs a shifting burden approach. Initially,
the party claiming the privilege must establish
“‘the preliminary facts necessary to support its
exercise, i.e., a communication made in the course of an
attorney-client relationship.'” DP Pham, LLC v.
Cheadle, 200 Cal.Rptr.3d 937, 946 (Cal.Ct.App. 2016)
(quoting Costco Wholesale Corp. v. Superior Court,
219 P.3d 736, 741 (Cal. 2009)); see also Fay, 2014
WL 2738682, at *5. “To evaluate whether the party
claiming the privilege has made a prima facie showing, the
focus is on the purpose of the relationship between
the parties to a communication.” League of
California Cities v. Superior Court, 194 Cal.Rptr.3d
444, 453 (Cal.Ct.App. 2015). “‘[I]t is not the
dominant purpose of a particular communication that dictates
whether the attorney-client privilege is applicable; rather
the issue is what was the dominant purpose of the
relationship.'” McAdam v. State Nat. Ins.
Co., 15 F.Supp.3d 1009, 1015 (S.D. Cal. 2014) (quoting
Cason v. Federated Life Ins. Co., 2011 WL 1807427,
at *2 (N.D. Cal. Oct. 17, 2011)); see also Fay, 2014
WL 2738682, at *7. Thus, where a party makes the requisite
showing as to the relationship, “then all documents and
communications are protected by the privilege without the
necessity of having to make individualized showings as to
each communication or document.” Fay Ave.
Properties, LLC v. Travelers Prop. & Cas. Co. of
Am., 2014 WL 1333669, at *11 (S.D. Cal. Apr. 2, 2014),
objections overruled sub nom. Fay, 2014 WL 2738682.
the party claiming the attorney-client privilege makes the
prima facie showing described above, “‘the
communication is presumed to have been made in
confidence.'” Fay, 2014 WL 2738682, at *5
(quoting Costco, 219 P.3d at 741); see also DP
Pham, 200 Cal.Rptr.3d at 946. Then, “‘the
opponent of the claim of privilege has the burden of proof to
establish the communication was not confidential or that the
privilege does not for other reasons apply.'”
Fay, 2014 WL 2738682, at *5 (quoting
Costco, 219 P.3d at 741); see also DP Pham,
200 Cal.Rptr.3d at 946.
The Federal Work Product Doctrine
federal work product doctrine, which finds its origins in
Hickman v. Taylor, 329 U.S. 495 (1947), is codified
in Federal Rule of Civil Procedure 26(b)(3). Abbott Labs.
v. Alpha Therapeutic Corp., 200 F.R.D. 401, 405 (N.D.
Ill. 2001); Pyramid Controls, Inc. v. Siemens Indus.
Automations, Inc., 176 F.R.D. 269, 276 (N.D. Ill. 1997).
Rule 26 “protects all ‘documents and
tangible things that are prepared in anticipation of
litigation'” by or for a party or its
representative for the purpose of analyzing or preparing the
party's case. Appleton Papers, Inc. v. EPA, 702
F.3d 1018, 1025 (7th Cir. 2012) (quoting Fed.R.Civ.P.
26(b)(3)(A)); see also The Manitowoc Co., Inc.
v. Kachmer, 2016 WL 2644857, at *4 (N.D. Ill. May 10,
2016); Patrick v. City of Chicago, 111 F.Supp.3d
909, 915 (N.D. Ill. 2015); Miller UK Ltd. v. Caterpillar,
Inc., 17 F.Supp.3d 711, 734 (N.D. Ill. 2014).
work product doctrine provides different degrees of
protection for so-called “fact” and
“opinion” work product. Appleton Papers,
702 F.3d at 1025. Fact work product
“‘consists of factual material'” while
opinion work product “‘comprises the mental
impressions, conclusions, opinions, or legal theories of an
attorney or a party's representative.'”
Timmermann's Ranch & Saddle Shop, Inc. v.
Pace, 2016 WL 1181792, at *2 (N.D. Ill. Mar. 28, 2016)
(quoting United States ex. Rel. Yannacopolous v.
Gen'l Dynamics, 231 F.R.D. 387, 385 (N.D. Ill.
2005)). Fact work product is discoverable “in the rare
case” where a party demonstrates that he has a
substantial need for the materials and that it would be
exceedingly difficult to obtain the information through other
means. Appleton Papers, 702 F.3d at 1022, 1025;
see also Grochocinski v. Mayer Brown Rowe & Maw
LLP, 251 F.R.D. 316, 321 (N.D. Ill. 2008). But opinion
work product remains protected even where a party makes such
a showing. Appleton Papers, 702 F.3d at 1023;
Beverly v. Watson, 2015 WL 5117043, at *2 (N.D. Ill.
Aug. 28, 2015). In either case, the party asserting that some
document or tangible thing is protected by the work product
doctrine bears the burden of showing that the doctrine
applies. Appleton Papers, 702 F.3d at 1023;
Hamdan v. Indiana Univ. Health N., LLC, 2014 WL
2881551, at *2 (S.D. Ind. June 24, 2014).
identifies six categories of documents in dispute and
provides the Bates-numbers for the documents it groups into
these categories. [ECF No. 328], at 4. It asserts that almost
all of the documents in these categories are protected by the
attorney-client privilege and that many are protected by the
work product doctrine. With varying degrees of specificity,
the parties confine their arguments to these six categories
of documents. The Court will address each category of
documents in turn as best that it can based upon the
FMPRIV00002-00005: The Lichtman
first category of documents identified by Fluidmaster
consists of reports regarding two witness interviews.
Id. Joanne Lichtman, a litigation attorney at the
Howrey law firm, worked as one of Fluidmaster's outside
counsel on various product liability lawsuits, and she
interviewed some of Fluidmaster's employees. [ECF No.
328-2], ¶ 11. The subject matter covered during these
interviews is not clear from the record now before the Court.
Regardless, after Lichtman's interviews with Ken Wogomon
(Fluidmaster's Manager of Quality) and Chris Coppock
(Fluidmaster's R&D Manager), “counsel”
prepared “report[s]” about them. [ECF No.
328-18], at 2, entries FMPRIV00002-00005. It is not clear
from the privilege log whether Lichtman or some other
attorney prepared the reports. Fluidmaster argues these
reports, which will be referred to as “the Lichtman
Reports, ” are protected by the attorney-client
privilege. Fluidmaster's vague description of these
documents as “information prepared by counsel re:
interview by Joanne Lichtman (Outside Counsel) of
[Fluidmaster employees]” appears to bring the documents
within the attorney-client privilege under California law at
least in terms of how they were created and the purpose of
dominant purpose of Lichtman's relationship with
Fluidmaster appears to have been attorney-client. There is no
indication that her relationship had any other purpose. And
Plaintiffs do not contend otherwise. Also, Plaintiffs do not
contest the proposition that Lichtman's communications
with Wogomon and Coppock constitute communications with
Lichtman's “client.” See Zurich Am. Ins.
Co. v. Superior Court, 66 Cal.Rptr.3d 833, 841
(Cal.Ct.App. 2007) (“[T]he attorney-client privilege
may extend to communications involving middle- and
lower-level employees.”); see also Kandel v.
Brother Int'l Corp., 683 F.Supp.2d 1076, 1083 (C.D.
instead argue that Fluidmaster has not made the requisite
preliminary showing as to privilege because the Lichtman
Reports discuss only factual issues. [ECF No. 343], at 12-13
(citing [ECF No. 328-12], at 2, a letter that Fluidmaster
filed in support of its motion in which one of
Fluidmaster's attorneys characterizes Lichtman's
interviews of Fluidmaster employees as “factual
investigation[s]”). According to Plaintiffs, the
attorney-client privilege under California law only applies
to communications that include a legal opinion formed and the
advice given by a lawyer. Therefore, reports about factual
investigations, Plaintiffs assert, are not covered.
argument is premised on a misreading of § 952 of the
California Code of Evidence, which defines
“confidential communication.” That provision
provides as follows: “‘confidential communication
between client and lawyer' means information
transmitted between a client and his or her lawyer in the
course of that relationship and in confidence . . ., and
includes a legal opinion formed and the advice given
by the lawyer in the course of that relationship.” Cal.
Evid. Code § 952 (emphasis added). Because of the use of
the conjunctive “and, ” the last clause is not a
restrictive modifier of “information
transmitted.” If the last clause of this definition
started with “that” instead of “and,
” then perhaps Plaintiffs' reading could be
correct. But that is not how the statute is written. Instead,
“confidential communication” is defined to
mean information transmitted, whether or not that
information is a legal opinion or advice. Then, the last
clause merely “uses ‘legal opinion' to
specify one type of information protected.” People
v. Bolden, 160 Cal.Rptr. 268, 268 (Cal.Ct.App. 1979).
reading of § 952 is confirmed by California courts'
interpretation of “confidential communication, ”
a term which they have explained should be “broadly
construed.” Palmer v. Superior Court, 180
Cal.Rptr.3d 620, 628 (Cal.Ct.App. 2014). California's
attorney-client privilege simply does not differentiate
“between ‘factual' and ‘legal'
information.” DP Pham, 200 Cal.Rptr.3d at
The “privilege equally attaches to both
‘legal' and ‘factual' information or
advice exchanged between the attorney and client.”
Larsen v. Coldwell Banker Real Estate Corp., 2012 WL
359466, at *5 (C.D. Cal. Feb. 2, 2012). In fact, the
privilege may extend to “communications that merely
transmit documents, ” even if those documents are
publically available. In re Superior Nat. Ins. Gr.,
518 B.R. 562, 569 (Bankr. C.D. Cal. 2014); DP Pham,
200 Cal.Rptr.3d at 945. All of this means that the privilege
protects the transmission of information “regardless of
their content.” DP Pham, 200 Cal.Rptr.3d at
948; see also Id. at 947 (noting that the
attorney-client analysis does not involve an inquiry into
“the nature of the communications”).
attempting to rebut this case law, Plaintiffs hang their hat
on a concurrence in Costco Wholesale Corporation v.
Superior Court, 219 P.3d 736 (Cal. 2009). In that case,
the concurring judge stated that, under § 952,
“the information transmitted between the lawyer and the
client must be similar in nature to the enumerated
examples-namely, the lawyer's legal opinion or
advice.” Id. at 748 (George, J., concurring).
This statement, however, is inconsistent with how the
controlling opinion characterized the privilege. The majority
described one of the California Supreme Court's previous
holdings in which the court found that certain materials were
protected even though they “might be described as
factual matter rather than legal advice.” Id.
at 742 (majority opinion). The majority then quoted that
earlier opinion for the proposition that “[n] either
the statutes articulating the attorney-client privilege nor
the cases which have interpreted it make any differentiation
between ‘factual' and ‘legal'
information.” Id. Therefore, Plaintiffs'
reliance on the concurring opinion in Costco is
also argue that Fluidmaster has waived the attorney-client
privilege with respect to the Lichtman Reports. This argument
is based on the fact that Fluidmaster did not assert the
attorney-client privilege with respect to these documents in
its August 26, 2015 privilege log. Instead, Fluidmaster
relied solely on the work product doctrine in that privilege
log for these documents. [ECF No. 343-4], at 4.
California law governs the existence and the scope of the
attorney-client privilege in this case, Plaintiffs contend
that federal law governs “issues of waiver.” [ECF
No. 343], at 11. The case cited by Plaintiffs for this
proposition does not go so far, and the Court is not
convinced that federal law governs all issues related to
waiver in this context. Regardless, Plaintiffs' argument
is not really about waiver in the first instance, and the
Court doubts Plaintiffs, if pressed on the issue, could show
Fluidmaster intentionally relinquished a known right with
knowledge of the facts so as to constitute a waiver under
California law. See F.D.I.C. v. Fid. & Deposit Co. of
Maryland, 196 F.R.D. 375, 380 (S.D. Cal. 2000)
(“Under California law, waiver of the attorney-client
privilege depends entirely on whether the client provided
knowing and voluntary consent to the disclosure.”).
Instead, Plaintiffs really are contending that Fluidmaster
violated Federal Rule of Civil Procedure 26 by not raising
the attorney-client privilege objection earlier and that this
failure justifies a sanction, which, according to Plaintiffs,
should be Court-ordered waiver. Federal law clearly controls
whether and what sanctions are appropriate when a party
violates the Federal Rules of Civil Procedure.
Federal Rule of Civil Procedure 26(b)(5), a party withholding
a document on the basis of a privilege must “expressly
make the claim.” Fed.R.Civ.P. 26(b)(5)(A)(i).
“The failure to provide the requesting party with a
sufficient and timely privilege log ‘may result in a
waiver of any protection from discovery.'”
Executive Mgmt. Servs., Inc. v. Fifth Third Bank,
309 F.R.D. 455, 464 (S.D. Ind. 2015) (quoting Miller v.
City of Plymouth, 2011 WL 1740154, at *4 (N.D. Ind. May
5, 2011)). “An order that privileged documents be
disclosed as a sanction is appropriate, however, only if the
party that authored the log has displayed willfulness, bad
faith or fault.” Muro v. Target Corp., 250
F.R.D. 350, 365 (N.D. Ill. 2007), aff'd, 580
F.3d 485 (7th Cir. 2009).
Court is not convinced that Fluidmaster did not act
“timely” in asserting the attorney-client
privilege. More importantly, however, on the record now
before the Court, there is no basis for concluding that
Fluidmaster acted willfully, in bad faith, or with fault by
not raising the attorney-client privilege with respect to
these documents in its August 2015 privilege log. Even if
Fluidmaster changed its mind, that would not be enough to
justify the sanction Plaintiffs seek at this relatively early
stage of this litigation. Further, Fluidmaster asserted the
attorney-client privilege with respect to the Lichtman
Reports when responding to Plaintiffs' request for
production of documents and asserted the privilege in its
revised privilege log, which was served several months after
the August 2015 privilege log. In other words, Fluidmaster
was not tardy in correcting or supplementing the record and
no prejudice resulted to Plaintiffs because of
Fluidmaster's initial oversight or position. The mere
fact that Fluidmaster listed the wrong or a different
privilege in its first privilege log should not result in the
drastic sanction of compelling the production of otherwise
raise one final issue with Fluidmaster's privilege log
with respect to the Lichtman Reports, however, that
potentially has more traction. Plaintiffs correctly note
that, while Fluidmaster listed Lichtman as “Legal
Personnel in Communication” and described the documents
at issue as having been “prepared by counsel, ”
Fluidmaster did not put any information in the “From,
” “To, ” “CC, ” and
“BCC” columns of its privilege log when
describing documents FMPRIV00002-00005. Plaintiffs claim that
this lack of information renders the privilege log deficient
and impedes their ability to assess whether any privilege may
have been waived. Technically, Plaintiffs are correct.
Fluidmaster does not address this issue in its reply brief.
Based on context, the Court speculates that Lichtman or
someone working with her or under her direction prepared
interview memos addressed to “the File” or
something similar after they spoke with Fluidmaster's
employees. But that is conjecture. And, as the Court noted
earlier, Fluidmaster's description of these documents on
its privilege log is a bit vague and only minimally
sufficient to invoke the attorney-client privilege in the
first place. Therefore, on the present record, Plaintiffs are
correct that Fluidmaster has not met its burden to show these