United States District Court, N.D. Illinois, Eastern Division
BRIAN LUCAS, ARONZO DAVIS, and NORMAN GREEN, on behalf of themselves and similarly situated laborers, Plaintiffs,
GOLD STANDARD BAKING, INC., PERSONNEL STAFFING GROUP, LLC d/b/a MVP, Defendants.
MEMORANDUM OPINION AND ORDER
B. KIM, UNITED STATES MAGISTRATE JUDGE
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 and to adjudicate the attorney-client
privilege assertion. For the following reasons, the motion is
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.)
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.)
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.)
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.)
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.
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).
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).
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.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 ...