United States District Court, N.D. Illinois, Eastern Division
MICHAEL NOVAK, CHRISTINA NOVAK and their daughter, T.N., Plaintiffs,
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.
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
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.
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
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
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.
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]
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
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].
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.
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.
that out of the way, the Court can tum to the merits of ...