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Lucas v. Gold Standard Baking, Inc.

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

April 24, 2017

BRIAN LUCAS, ARONZO DAVIS, and NORMAN GREEN, on behalf of themselves and similarly situated laborers, Plaintiffs,
v.
GOLD STANDARD BAKING, INC., PERSONNEL STAFFING GROUP, LLC d/b/a MVP, Defendants.

          MEMORANDUM OPINION AND ORDER

          YOUNG B. KIM, UNITED STATES MAGISTRATE JUDGE

         Before the court is Defendant Personnel Staffing Group, LLC d/b/a Most Valuable Personnel's (“MVP”) motion to compel the depositions of Aronzo Davis and Torrence Vaughans[1] and to adjudicate the attorney-client privilege assertion. For the following reasons, the motion is denied:

         Background

         Plaintiffs allege in this case that Defendants denied them employment because of their race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Civil Rights Act of 1866, 42 U.S.C. § 1981. (R. 322, Fifth Am. Compl. ¶ 1.) MVP is a “temporary staffing agency” with an office in Cicero, Illinois, which “provides temporary labor personnel to third party clients, ” including Defendant Gold Standard Baking, Inc. (“GSB”). (R. 326, MVP's Answer ¶¶ 16, 49.) Plaintiffs accuse GSB and MVP of “engaging in a discriminatory practice of assigning almost exclusively Latino employees to work at [GSB], ” to the detriment of African American workers. (R. 322, Fifth Am. Compl. ¶ 71.)

         In its motion, MVP seeks to compel Davis and Vaughans to answer deposition questions regarding conversations they had with their counsel of record, Christopher Williams, when they each met Williams for the first time. (R. 382, MVP's Mot. at 1.) Davis and Vaughans first met Williams after a “Know Your Rights” (“KYR”) seminar he presented. (R. 395, Pls.' Resp. at 1, Ex. A, Williams Decl. ¶ 14.) At these KYR seminars Williams generally discusses information about discrimination in the workplace, sexual harassment, use of background checks, minimum wage and overtime laws, and other work-related legal topics. (Id., Ex. A-1 at 1.) After KYR seminars, Williams conducts free, one-on-one legal clinics, which sometimes result in new client relationships. (Id., Ex. A, Williams Decl. ¶ 14.)

         Vaughans attended one of Williams's KYR presentations in the fall of 2011. (Id., Ex. B, Vaughans Decl. ¶ 3.) Vaughans had not previously known Williams. (Id. ¶ 4.) Vaughans approached Williams after the seminar and spoke one-on-one with him “to get legal advice . . . about how some of the laws he talked about affected jobs where [Vaughans] had worked and jobs where [Vaughans] had applied.” (Id.) At the time, Vaughans “had already been looking for work at MVP and several other temporary staffing agencies where [he] had worked.” (Id. ¶ 5.) Williams told Vaughans that their conversation would be confidential. (Id. ¶ 6.)

         Similarly, Davis met with Williams in the summer or fall of 2011 after a KYR presentation. (Id., Ex. C, Davis Decl. ¶ 3.) Davis had not known Williams before that day. (Id. ¶ 4.) Davis asked to meet with Williams to obtain legal advice regarding one of the topics addressed in the seminar. (Id. ¶¶ 3, 4.) Williams told Davis that the conversation would be confidential. (Id. ¶ 3.)

         During their depositions, MVP asked Davis and Vaughans questions about their initial conversations with Williams. (R. 382, MVP's Mot. at 1.) In response to the questions about what Williams said to each individual and vice versa, Williams asserted the attorney-client privilege and directed Davis and Vaughans not to respond. (R. 384, MVP's Mem. at 1, 5, 7.) MVP argues that these conversations are not privileged.

         Analysis

         MVP argues that Davis and Vaughans should be compelled to answer the disputed deposition questions because, according to MVP, the responses are not protected by the attorney-client privilege. Federal law provides the rules of decision in this case, so issues of privilege are governed by federal common law. See Fed. R. Evid. 501; Jaffee v. Redmond, 518 U.S. 1, 5-6 (1996) (applying federal common law of privileges to a case including a claim under 42 U.S.C. § 1983); In re Pebsworth, 705 F.2d 261, 262 (7th Cir. 1983) (in non-diversity actions privileges are matters of federal common law). The purpose of the attorney-client privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

         The Seventh Circuit has articulated the following standard for determining whether the attorney-client privilege attaches:

'(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.'

United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997) (quoting 8 John Henry Wigmore, Evidence in Trials at Common Law § 2292 (1961)); see also Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007). Because the privilege is “in derogation of the search for the truth, ” this court construes it narrowly. Evans, 113 F.3d at 1461. The party seeking privilege protection carries the burden of showing that it applies. Valero Energy Corp. v. United States, 569 F.3d 626, 630 (7th Cir. 2009).

         MVP argues that Williams's initial meetings with Davis and Vaughans are not protected by the attorney-client privilege for two reasons: first, no attorney-client relationship existed at the time that Williams first met with Davis and Vaughans; and second, even if a privilege attached, Williams waived the privilege. (See R. 384, MVP's Mem. at 2, 6.) As an initial matter, the court must determine whether the attorney-client privilege attaches to the communications sought before addressing whether the privilege has been waived. Under federal common law, an attorney-client privilege may attach even if there is no “formal” or “express” attorney-client relationship.[2]See Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir. 1978). Indeed, “[t]he fiduciary relationship existing between lawyer and client extends to preliminary consultation by a prospective client with a view to retention of the lawyer, although actual employment does not result.” Id. Determining whether the privilege attaches “hinges upon ...


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