Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Novak v. State Parkway Condominium Ass'n

United States District Court, N.D. Illinois, Eastern Division

March 20, 2017

MICHAEL NOVAK, CHRISTINA NOVAK and their daughter, T.N., Plaintiffs,
v.
STATE PARKWAY CONDOMINIUM ASS'N, THE BOARD OF THE STATE PARKWAY CONDOMINIUM ASS'N, DONNA WEBER, and LIEBERMAN MANAGEMENT SERVS., INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          Jeffrey T. Gilbert Magistrate Judge.

         Defendants Lieberman Management Services, Inc., Donna Weber, and The State Parkway Condominium Association (collectively, "Defendants") have moved to compel Plaintiffs Michael Novak, Christina Novak, and T.N. (collectively, "Plaintiffs") to return inadvertently produced documents. Defendants' Motion to Compel Plaintiffs to Return Documents Protected by Attorney-Client Privilege ("Defendants' Motion"), [ECF No. 421]. For the reasons stated below, Defendants' Motion [ECF No. 421] is granted.

         I. BACKGROUND

         On July 11, 2016, Defendants produced roughly 700 pages of documents to Plaintiffs. Defendants' Memorandum of Law in Support of Their Motion to Compel Plaintiffs to Return Documents Protected by Attorney-Client Privilege ("Defendants' Opening Brief), [ECF No. 422], at 2; Plaintiffs' Response and Memorandum of Law in Opposition to Defendants' Motion to Compel Plaintiffs to Return Documents Protected by Attorney-Client Privilege ("Plaintiffs' Response"), [ECF No. 428], at 1. Later that same day, Plaintiffs emailed Defendants' counsel about that production. [ECF No. 422-2]. In the email, Plaintiffs asked, "Why are so many of your attorney-client communications in this production not redacted? Are your clients waiving attorney-client privilege?" Id. at 1. Plaintiffs did not identify by date, subject matter, or Bates-number the documents that were the subject of their inquiry. Defendants did not immediately respond to the email.

         Defendants say they subsequently realized that their production on July 11 was incomplete. Defendants' Opening Brief, [ECF No. 422], at 3. Defendants say they determined that a small stack of documents had been "placed to the side during the scanning process." Id. So, on July 22, 2016, Defendants reproduced all of the documents they had produced 11 days earlier and, at the same time, produced the additional documents that had been inadvertently set aside and not previously produced. Id; see also Plaintiffs' Response, [ECF No. 428], at 2. Defendants reproduced all of the documents, rather than merely the new ones, so they could sequentially renumber the already-produced documents after adding the new ones to the production. Defendants' Opening Brief, [ECF No. 422], at 3.

         At some point during the next 10 days, Defendants say they finally had time to compare their productions from July 11 and July 22. Id. While doing so, Defendants identified the 41 pages of documents that are the subject of this motion and that Defendants contend had been inadvertently produced. Id. The same 41 pages were included in both July productions. Id. These are the documents Plaintiffs referenced in their email of July 11, 2016. According to Defendants, the inadvertent production occurred because of a "clerical mistake." Id. at 7. Defendants say that, although they prepared redacted versions of the 41 pages, a stack of the unredacted documents was mixed up with the redacted stack at some point during the production process, leading to the production of the unredacted versions. Id.

         On August 1, 2016, after identifying specifically which documents were inadvertently produced, Defendants' counsel sent Plaintiffs a letter. [ECF No. 422-1]. In the letter, Defendants' counsel said: "In reviewing documents previously produced to you, we found that several documents had been inadvertently produced that contained privilege materials. These documents are bates[-]stamped with the following ranges: SP015346 - 15357, SP015360 -15369, SP015376 - 15382, SP015395, SP015410 - 15412, SP015432 - 15436, and SP015440 -15442." Id. In the letter, Defendants asked Plaintiffs to sequester and return the documents. Id. Defendants also said they would produce all of the documents in redacted form. Id.

         Plaintiffs responded later the same day. In their email, Plaintiffs told Defendants' counsel that they "consider waiting at least three weeks to respond to [their] email [from July 11, 2016] . . . constitutes a waiver of attorney-client privilege." [ECF No. 422-2]. Plaintiffs said they wanted to research the issue more and they would "get back to" Defendants' counsel "later [that] month." Id.

         Plaintiffs and Defendants were unable to resolve their dispute about the return of the inadvertently produced documents. So, on December 30, 2016, Defendants filed a motion to compel their return. Defendants' Motion to Compel Plaintiffs' Discovery and to Reschedule Status, [ECF No. 398]. Plaintiffs filed a "limited response" to the motion just a few days later. Plaintiffs' Limited Response to Defendants' Motion to Compel Plaintiffs' Discovery and to Reschedule Status, [ECF No. 403]. The Court then entered an order stating it could not "decide the waiver issues based upon the skeletal papers, devoid of citation to any case or other authority, that the parties have filed so far on those issues." Order Dated 1/4/17, [ECF No. 406]. The Court denied Defendants' perfunctory motion and set a schedule for the filing of more complete papers to resolve the issue.

         Consistent with that schedule, Defendants filed a motion seeking the return of the 41 pages of documents described above, along with a supporting memorandum; Plaintiffs filed a response brief; and Defendants filed a reply brief. Defendants also submitted copies of all of the documents for in camera review, as the Court ordered them to do after they suggested the procedure. See Minute Entry Dated 1/31/17, [ECF No. 426].[1]

         There are two preliminary issues that require some attention. Plaintiffs have filed a motion seeking leave to file a sur-response and attached their proposed sur-response to the motion. Plaintiffs' Instanter for Leave to File a Verified Sur-Response to Defendants' Motion to Compel Plaintiffs to Return Documents Protected by Attorney-Client Privilege, [ECF No. 434]. The Court has reviewed the proposed sur-response. The brief defends Plaintiffs' right to view certain financial documents unrelated to the inadvertently produced documents, id at 4-6, accuses Defendants of misquoting an order, id. at 6, summarizes the status of some FOIA requests and state administrative proceedings, id. at 6-7, states Plaintiffs' intent to file a motion to compel, id. at 7, notes a supposed deficiency in Defendants' privilege log unrelated to the inadvertently produced documents, id, and says Plaintiffs filed a motion in state court, id. Because none of these matters are relevant to the motion now before the Court, the Court denies Plaintiffs' motion to file a sur-response. Even if the Court were to consider that filing, the brief would not alter the Court's analysis and ruling with respect to the present motion.

         Finally, Defendants assert, repeatedly, that the Federal Rules of Civil Procedure "mandate that Plaintiffs should have returned the documents once Defendants asserted the [attorney-client] privilege" in their August 1 claw-back letter. Defendants' Opening Brief, [ECF No. 422], at 10; see also Defendants' Reply in Support of Their Motion to Compel Plaintiffs to Return Documents Protected by Attorney-Client Privilege ("Defendants' Reply"), [ECF No. 433], at 1. But Federal Rule of Civil Procedure 26(b)(5)(B) provides, "After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has." Fed.R.Civ.P. 25(b)(5)(B) (emphasis added). That means Plaintiffs did not violate Rule 26 by failing to immediately return the documents.[2]

         With that out of the way, the Court can tum to the merits of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.