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Schaeferr v. Universal Scaffolding & Equipment, LLC

United States District Court, S.D. Illinois

April 18, 2017

MATTHEW SCHAEFER and CYNTHIA SCHAEFER, Plaintiffs,
v.
UNIVERSAL SCAFFOLDING & EQUIPMENT, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          Reona J. Dalyl United States Magistrate Judge

         Before the Court are the various pretrial motions and trial briefs of the parties. (See Doc. 272.) On June 16, 2010, Plaintiffs filed this action against Defendant Universal Scaffolding & Equipment (“Universal”), alleging claims of negligence, strict liability, and loss of consortium. (Doc. 2-1.) The complaint alleged that, on November 17, 2008, Matthew Schaefer was injured by a falling scaffolding bar, which Defendant Universal manufactured. (Id.) On January 12, 2012, Plaintiffs moved for leave to amend the complaint, stating that Defendants Brand Energy Services (“Brand”) and Dynegy Midwest Generation (“Dynegy”) failed to preserve the scaffolding bar and seeking to add claims of negligent spoliation against them. (Docs. 51, 76.) On February 10, 2014, the Court granted summary judgment to Defendant Universal, leaving Plaintiff's claims of negligence against Dynegy, negligent spoliation against Dynegy and Brand, and loss of consortium against Dynegy and Brand. (Doc. 159.) On January 23, 2015, the Court granted summary judgment to Dynegy on the negligence claim. (Doc. 199.) On June 4, 2015, the Court granted summary judgment on the remaining claims. (Doc. 247.) On October 7, 2016, the Seventh Circuit reversed the most recent summary judgment decision and remanded the case to the Court for further proceedings. (Doc. 261.) Accordingly, the remaining claims consist of Plaintiffs' claims against Dynegy and Brand for negligent spoliation and loss of consortium.[1]

         Upon remand, the Court set a trial date and requested a status update with respect to any remaining trial-related issues. (Docs. 264, 265, 273.) On March 23, 2017, the Court heard oral argument on several pretrial motions and issues raised in trial briefs, including the issue of whether Defendants would be allowed to call Plaintiff's counsel as a witness for trial and whether Plaintiffs' loss of consortium claim will proceed to trial. (Doc. 276.) The parties also requested that the Court determine the appropriate measure of damages for negligent spoliation claims. (Id.)

         Testimony of Plaintiffs' Counsel

         Plaintiffs move to quash trial subpoenas for their counsel, arguing that counsel's testimony is not relevant or necessary to prove the issues remaining for trial. (Doc. 223.) The Federal Rules of Civil Procedure authorize the Court to issue subpoenas for attendance at trial, hearing, or deposition. Fed.R.Civ.P. 45(c)(1). The rules also provide that a court shall quash or modify a subpoena if it “subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(iv). In analyzing whether compliance with a subpoena would be unduly burdensome, a court must ask whether “the burden of compliance with [the subpoena] would exceed the benefit of production of the material sought by it.” See Northwestern Mem. Hosp. v. Ashcroft, 362 F.3d 923, 927 (7th Cir. 2004). This test takes into account the following factors: (1) whether the party subpoenaed is a non-party in the underlying suit; (2) whether the information requested is relevant; (3) whether the party requesting the information has a substantial need for it; (4) whether the document request is overly broad; (5) whether the time period the request covers is reasonable; (6) whether the request is sufficiently particular; and (7) whether the request imposes a burden on the subpoenaed party. American Soc. of Media Photographers, Inc. v. Google, Inc., 2013 WL 1883204, at *2 (N.D. Ill. 2013); see also Wi-Lan v. LG Electronics, Inc., 2011 WL 148058, at *2 (N.D. Ill. 2011); Whitlow v. Martin, 263 F.R.D. 507, 512 (C.D. Ill. 2009). The decision to grant, deny, or modify a motion to quash a subpoena is within the district court's discretion. Griffin v. Foley, 542 F.3d 209, 223 (7th Cir. 2008).

         To demonstrate the burden imposed by the subpoenas, Plaintiffs rely on the advocate-witness rule, which “articulates the professional impropriety of assuming the dual role of advocate and witness in a single proceeding.” United States v. Johnston, 690 F.2d 638, 642 (7th Cir. 1982). “If the need for his testimony becomes apparent after the attorney has undertaken employment in the case, he must withdraw from the conduct of the trial.” Id. Plaintiffs' counsel has also represented that Plaintiffs' counsel would withdraw from representation if required to testify. Therefore, the Court finds that requiring Plaintiffs' counsel to testify would present a substantial burden to Plaintiffs.

         The Court next considers whether the burden of requiring Plaintiffs' counsel to testify exceeds the probative value of such testimony. “[A] plaintiff claiming spoliation of evidence must prove that: (1) the defendant owed the plaintiff a duty to preserve the evidence; (2) the defendant breached that duty by losing or destroying the evidence; (3) the loss or destruction of the evidence was the proximate cause of the plaintiff's inability to prove an underlying lawsuit; and (4) as a result, the plaintiff suffered actual damages.” Martin v. Keeley & Sons, Inc., 979 N.E.2d 22, 27 (Ill. 2012). As articulated by the Seventh Circuit:

So, to prevail on their spoliation claims, the Schaefers must make two showings. First, they must show that the loss of the scaffolding piece would cause them to lose their underlying suit. And second, they must show that if they had the scaffolding piece, they would have a “reasonable probability” of winning. But “reasonable probability” is less than proof of success by a preponderance of the evidence, because that is the standard required to show that they would have won the underlying suit.

Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 611 (7th Cir. 2016) (citing Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 271 (1995)).

         The Court has determined that Defendants had a duty to preserve the scaffolding bar, and the Seventh Circuit has affirmed this determination. (Docs. 159, 261.) The parties need not relitigate the issue at trial. See Fed. R. Civ. P. 56(g). Counsel's testimony may be relevant to whether Defendants breached the duty to preserve and the impact of the scaffolding bar on the underlying causes of action, but counsel's testimony is not necessary to establish, or defend against, these elements. Based on oral arguments, the essence of Defendants' argument on breach of duty is the uncontested fact that Plaintiffs and their representatives did not request the scaffolding bar until November 2011. While Defendants may find it helpful to question counsel about the thought process in not requesting the scaffolding bar sooner, such testimony is not necessary for Defendants to show that they fulfilled the duty to preserve. Moreover, although Plaintiffs' counsel could likely offer testimony on the merits of the underlying products liability claim, Defendants can amply address Plaintiffs' reasonable probability of winning through other means, including expert testimony, the prevalence of flaws with scaffolding parts at the plant, and descriptions of the scaffolding bar at issue.

         Additionally, Defendant Brand seeks Plaintiffs' counsel's testimony in furtherance of the affirmative defense of comparative fault and asks the Court to find that Plaintiffs' counsel acted as Plaintiffs' agent. (Doc. 227.) Illinois courts have adopted the doctrine of comparative negligence under which “each party must bear the burden of the percentage of damages of all parties in direct proportion to his fault.” Alvis v. Ribar, 421 N.E.2d 886, 897 (Ill. 1981). “A principal-agent relationship exists when the principal has the right to control the manner in which the agent performs his work and the agent has the ability to subject the principal to personal liability.” Amigo's Inn, Inc. v. License Appeal Comm'n of City of Chicago, 822 N.E.2d 107, 113 (Ill.App.Ct. 2004). Under Illinois law, “when attorneys act pursuant to independent professional judgment, they are presumptively independent contractors whose alleged misconduct may not be imputed to their clients, unless it is shown that the client directed, controlled, authorized, or ratified the alleged misconduct.” Horwitz v. Holabird & Root, 816 N.E.2d 272, 284 (Ill. 2004). Defendants have not shown that Plaintiffs directed their counsel in this manner, and the Court denies Defendant Brand's motion for a finding that Plaintiffs' counsel acted as Plaintiffs' agent. Although Plaintiffs' instructions to counsel and knowledge of his counsel's conduct may be relevant for purposes of comparative fault, eliciting testimony from Plaintiffs' counsel is not necessary for this purpose.

         Based on the foregoing, the Court finds that the burden of requiring Plaintiffs' counsel to testify significantly exceeds the probative value of such testimony. Accordingly, Plaintiffs' Motion to Quash the Trial Subpoenas for Counsel is granted.

         Defendants further ask the Court to find that Plaintiffs have waived the attorney-client privilege and work product privilege with regard to specific communications by asserting the spoliation claim and to find that Defendants are entitled to question Plaintiffs regarding communications with counsel in an effort to establish Plaintiffs' comparative fault. (Doc. 219.) Under Illinois law, the protections afforded by the attorney-client and work product privileges can be waived by the client. Lama v. Preskill, 818 N.E.2d 443, 448 (Ill.App.Ct. 2004). The privilege may be impliedly waived when the client asserts claims or defenses that put his or her communications with the attorney at issue in the litigation. Shapo v. Tires ‘N Tracks, Inc., 782 N.E.2d 813, 819 (Ill.App.Ct. 2002). An implied waiver thus occurs “where a party voluntarily injects either a factual or legal issue into the case, the truthful resolution of which requires an examination of the confidential communications.” Pyramid Controls, Inc. v. Siemens Indus. Automations, Inc., 176 F.R.D. 269, 272 (N.D. Ill. 1997). “[T]he attorney-client privilege is waived when a litigant places information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would be manifestly unfair to the opposing party.” Id. Examples of such affirmative acts include cases in which clients sue their attorneys for legal malpractice or to contest legal fees or when a plaintiff asserts the discovery exception to a statute of limitations. Lama, 818 N.E.2d at 448-49.

         The Court finds that Plaintiff's spoliation claim, by itself, is not an affirmative act by Plaintiff that places attorney-client communications directly at issue. Defendants' assertion of an affirmative defense of comparative fault cannot be an affirmative act of Plaintiff which necessitates a waiver of privilege. Defendants' arguments assume that Plaintiffs will place such communications at issue when questioned about their efforts to preserve the bar. Although this is a reasonable assumption, Plaintiffs have not yet done so, and ...


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