United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. Daly United States Magistrate Judge
matter comes before the Court on the discovery dispute
conference held on December 6, 2016. The parties discussed
several discovery issues, including the production of bank
records, assertions of attorney-client privilege in response
to questions at Plaintiff's deposition, a second
deposition of Plaintiff, and the scope of discovery at this
time. This case is a proposed class action in which Plaintiff
claims that Defendants violated the Fair and Accurate Credit
Transactions Act, 15 U.S.C. §§1681c(g), by printing
more than the last five digits of debit cards on
electronically printed receipts. Defendant NRT Technology
Corporation is a provider of automatic teller machines, and
Defendant Tropicana Entertainment operates casinos, including
the Lumiere Casino in St. Louis, Missouri.
seek Plaintiff's bank statements from January 2016 to the
present date, which will show the extent of Plaintiff's
expenses with regard to the purchase of identity theft
prevention services. Plaintiff asserts the cost of the
services as damages. Plaintiff has produced a single bank
statement for the month of September through October 2016
from Regions Bank. The incident giving rise this action
occurred in January and February 2016. Plaintiff argues
that he has produced the only bank statement with relevant
information. However, the Court finds that Defendants'
request falls within the general scope of discovery and is
reasonably limited in time, proportional to the needs of the
case, and does not significantly burden Plaintiff.
See Fed. R. Civ. P. 26(b)(1). Plaintiff must produce
the bank statements from January 2016 to the present date in
full, subject to the protective order, which was previously
entered. (Doc. 86.) Plaintiff must further supplement his
discovery responses with bank statements as they become
available but may redact the supplemental bank statements as
long as they adequately demonstrate the continued purchase
(or lack thereof) of the identity theft prevention services.
also take issue with the attorney-client privilege asserted
by Plaintiff in response to several questions at his
deposition, and the Court agrees with Defendants with respect
to two questions. First, Plaintiff's attorney asserted
privilege when his client was asked whether he paid the
Applewhite Donner firm in a prior lawsuit. Under Illinois
law, “[i]t is well-recognized that information
regarding a client's fees generally is not a confidential
communication between an attorney and client, and thus is not
protected by the attorney client privilege.” People
ex rel. Ulrich v. Stukel, 689 N.E.2d 319, 327 (1997).
“The payment of fees is merely incidental to the
attorney-client relationship and typically does not involve
the disclosure of confidential communications arising from
the relationship.” Id. Plaintiff argues that
the information is privileged because there was no written
fee agreement but cites no authority for the proposition that
attorney-client privilege turns on whether a communication is
written, oral, or otherwise. Defendants sought information
regarding whether a fee was paid; therefore, the privilege
was improperly asserted.
Plaintiff asserted attorney-client privilege when asked
whether he provided his bank account information to his
attorneys in a line of questioning to determine the source
and method used to obtain the bank statement for the month of
September and October 2016 from Regions Bank. The Court
recognizes Plaintiff's legitimate concern that the
questioning would stray into the realm of privileged
communication but finds that the question posed falls short.
At the deposition, Plaintiff testified that he gave
information to his attorneys that allowed them to obtain bank
records for the purpose of responding to discovery.
Defendants are entitled to inquire further regarding what
information he gave them and to inquire generally as to how
his attorneys obtained the bank statement.
light of the overruled objections and forthcoming bank
statements, the Court will allow Defendants to depose
Plaintiff a second time for the limited purpose of
investigating the bank statements and to elicit testimony
based on the rulings in this Order. The deposition will be
held in St. Louis, or as otherwise agreed, and the parties
should cooperate to reach an agreement on a time and date
convenient for Plaintiff. Each party will bear its own costs.
the parties seek clarity on whether the scope of discovery is
limited to class certification issues or whether they may
proceed on discovery on the merits. The scheduling and
discovery order does not specifically restrict the scope of
discovery to class certification. (Doc. 52.) Indeed,
discovery pertaining to class certification is often also
relevant to the merits of a class action. See Harris v.
comScore, Inc., 2012 WL 686709, at *4 (N.D. Ill. 2012)
(“the boundary between a class determination and the
merits may not always be easily discernible”).
Nevertheless, the local rules provide, “Priority shall
be given to discovery on class certification issues.”
Local Rule 23.1(a). The Court clarifies that the parties
should not seek discovery on issues that bear no relevance to
the class certification issue until the class certification
issue is resolved.
 Plaintiff informed the Court that, in
the summer of 2016, Plaintiff switched bank accounts from
Scott Credit Union to Regions Bank.
 Defendants also noted assertions of
privilege in response to questions regarding: (1)
Plaintiff's input to his attorneys on the complaint; and
(2) whether Plaintiff and his counsel discussed anything
other than Plaintiff's role in this case. The Court finds
that Plaintiff properly asserted privilege in response to the
first question and that Plaintiff ...