United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER 
I. SCHENKIER UNITED STATES MAGISTRATE JUDGE .
Huntington Chase Condominium Association ("HCCA")
sued defendant Mid-Century Insurance Co
("Mid-Century") in Illinois state court for breach
of an insurance contract arising out of a property damage
claim. Defendant removed the case to federal court (doc. # 1:
Pet. for Remov. at 1). Before the Court is Mid-Century's
Motion to Compel Production of Documents withheld on the
grounds of attorney-client privilege (doc. # 28:
Mot. to Comp.).
and July 2016, Mid-Century served Requests for Production on
HCCA, and issued subpoenas to HCCA's property manager,
Lieberman Management Services ("LMS"), and a
roofing contractor, Barry Roofing, Inc. ("Barry
Roofing") (Mot. to Comp. at 1). In response to each of
these requests, HCCA, LMS and Barry Roofing produced some
documents accompanied by privilege logs identifying email
communications HCCA asserts are protected from production by
the attorney-client privilege. Mid-Century seeks documents
from each of the separate privilege logs.
Privilege Log contains 35 emails, 33 of which are described
as having been sent between Barry Roofing principal John
Argento ("Mr. Argento"), and HCCA's property
manager at LMS, Jim Beck ("Mr. Beck"). Each is
described in the LMS Privilege Log as "Email discussing
conversations with attorney" (Mot. to Comp. at 2; doc. #
28-1: Lieberman Sub. Priv. Log at 1-3). Mid-Century seeks
production of those 33 emails between Mr. Argento and Mr.
Barry Roofing Privilege Log ("BR Privilege Log")
lists 56 emails, 28 of which are described as having been
sent between Mr. Argento and Mr. Beck. Those 28 emails are
described as "Email discussing conversations with
attorney" or "Email discussing Childress Duffy fee
agreement" (Mot. to Comp. at 2; doc. # 28-2: Priv. Log
at 1-4). Of the remaining 28 emails, 23 are logged as having
been sent between Mr. Argento and attorneys or staff of
Childress Duffy, the law firm that represents HCCA in this
lawsuit. Those emails are described in the BR Privilege Log
as "Email conversation with Childress Duffy"
(Id.). There are four emails on the BR Privilege Log
that are described as having been sent by Mr. Argento to an
individual named Spencer Rutenbar ("Mr. Rutenbar").
The last email on this log is from a Childress Duffy attorney
to Mr. Rutenbar (Id.). Mid-Century seeks production
of all 56 of the emails on the BR Privilege Log.
last batch of materials at issue in this motion is from Barry
Roofing, accompanied by a supplemental privilege log (the
"Supplemental Privilege Log"). This Supplemental
Privilege Log identifies five letters from Childress Duffy
employees to Mr, Argento, with a "Childress Duffy Fee
Agreement" enclosed with each of the letters (Mot. to
Comp. at 2; doc. # 28-2: Priv. Log at 6-8). Mid-Century seeks
production of the five letters and the enclosed Childress
Duffy Fee Agreements.
compliance with the Court's order (doc. # 27), plaintiff
delivered to this Court for in camera review an
agreed sample of 10 emails (or email chains), all of which
were listed on the BR Privilege Log.
agreed by the parties, because this case is a diversity
action arising out of a contractual dispute in which Illinois
law governs the rules of decision, this Court must apply
Illinois law to determine whether the attorney-client
privilege applies to the subject documents. See Favala v.
Cumberland Engineering Co., a Division of John Brown
Inc., 17 F.3d 987, 989 (7th Cir. 1994); Fed.R.Evid. 302.
Under Illinois law, "[w]here legal advice of any kind is
sought from a lawyer in his or her capacity as a lawyer, the
communications relating to that purpose, made in confidence
by the client, are protected from disclosure by the client or
lawyer, unless the protection is waived." Center
Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345,
355 (Ill . 2012). But "Illinois [also] adheres 'to a
strong policy of encouraging disclosure, with an eye toward
ascertaining that truth which is essential to the proper
disposition of a lawsuit."' Center
Partners, 981 N.E.2d at 356, quoting Waste
Management, Inc. v. International Surplus Lines Ins.
Co., 579 N.E.2d 322, 327 (Ill. 1991).
party claiming the privilege, plaintiff "carries the
burden of presenting facts that give rise to the
privilege." Janousek v. Slotky, 980 N.E.2d 641,
650 (Ill.App.. Ct. 2012); Favala, 17 F.3d at 990. To
establish that a document is protected by the attorney-client
privilege, "the claimant must show ... that the
communication originated in a confidence that it would not be
disclosed, was made to an attorney acting in his legal
capacity for the purpose of securing legal advice or
services, and remained confidential." Consolidation
Coal Co. v. Bucyrus-Erie Co., 432 N.E, 2d 250, 257 (Ill.
1982) (citation omitted); Sullivan v. Alcatel-Lucent USA,
Inc., No. 12 C 7528, 2013 WL 2637936, at *2 (N.D. Ill.
June 12, 2013) (citations omitted) (a party claiming
attorney-client privilege must show '"threshold
requirements, ' including: '(1) that the
communication originated in a confidence that it would not be
disclosed'; '[that] it was made to an attorney acting
in his legal capacity for the purpose of securing legal
advice or services, '; and (3) 'that [it] remained
Illinois Supreme Court has adopted the "control
group" test to "determine which communications
between employees and agents of a corporation and their legal
counsel are privileged." McChristian v. Brink,
65 N.E.3d 428, 433 (Ill.App.Ct. 2016) citing
Consolidation Coal, 432 N.E.2d 250. Under the control
group test, "'an employee whose advisory role to top
management in a particular area is such that a decision would
not normally be made without his advice or opinion, and whose
opinion in fact forms the basis of any final decision by
those with actual authority, is properly within the control
group.'" McChristian, 65 N.E.3d at 433
quoting Consolidation Coal, 432 N.E.2d at 258.
"Thus, if an employee of the status described is
consulted for the purpose of determining what legal action
the corporation will pursue, his communication is protected
from disclosure." Consolidation Coal, 432 N.E,
2d at 258. The Consolidation Coal control group
analysis "accommodates a principal/agent relationship
which involves a non-employee agent working within the scope
of his authority." Caremark, Inc. v. Affiliated
Computer Services, Inc., 192 F.R.D. 263, 267 (N.D. Ill.
if a control group member communicates with someone outside
of the control group, the privilege is lost.
Midwesco-Paschen Joint Venture for Viking Projects v. Imo
Industries, Inc.,638 N.E.2d 322, 329 (Ill.App.Ct. 1994)
("Distribution of otherwise privileged material to
individuals outside of the control group destroys the
privilege"). If a non- control group member
"communicates with someone in the control group that
communication is not protected: the employee cannot shield
his communication or communications to him and the control
group member cannot claim the privilege because it was
destroyed when it leaves the group, similar to an individual
who has protected communication with counsel but loses the
protection once he publishes the communication to
another." Pensler v. Fox Television Stations,
Inc., No. 1-14-2694, 2016 WL 3350788, at *5 (Ill.App.Ct.
2016). "This is so even if the communication is with the
corporate attorney." Id. citing
Midwesco-Paschen, 638 N.E.2d at 332 (privilege ...