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Viamedia, Inc. v. Comcast Corp.

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

June 30, 2017

VIAMEDIA, INC., Plaintiff,


          AMY J. ST. EVE, District Court Judge.

         Defendants Comcast Corporation (“Comcast”) and Comcast Spotlight, LP (“Comcast Spotlight”)[1] have moved to compel Plaintiff Viamedia, Inc. (“Viamedia”) to produce certain documents pursuant to Federal Rule of Civil Procedure 26 and Federal Rule of Evidence 502. (R. 104.) Viamedia asserts that the documents in question are privileged and that it has not waived privilege. (R. 117.) For the following reasons, the Court denies Defendants' motion.


         There are two sets of documents at issue, though there is some overlap between the two sets. The first consists of 51 documents that Viamedia disclosed to prospective litigation financing firms. Viamedia claims the work-product doctrine and the attorney client privilege protect these documents. The second set of documents consists of 432 documents Viamedia produced to the United States Department of Justice (“DOJ”) in connection with DOJ's investigation of Comcast. The parties do not dispute whether these documents are privileged.

         Instead, they disagree as to whether Viamedia waived the privilege or whether the privilege still applies to the documents under Federal Rule of Evidence 502(b) in spite of Viamedia's disclosure. The Court discusses the relevant law and facts in the sections below.

         I. The Documents Provided to Litigation Funding Firms

         Defendants move the Court to compel Viamedia to turn over 51 documents that Viamedia had disclosed to prospective litigation financing firms. (R. 106 at 10-13.) Viamedia argues that these documents are protected by the attorney-client privilege and the work-product doctrine. (R. 117 at 7-11.) Additionally, Viamedia contends that Defendants failed to show that discovery of the 51 documents is relevant and proportional[2] to the needs of the case. (Id. at 7.) Because the Court concludes that the documents are protected by the work-product doctrine, the Court denies Viamedia's motion to the extent it relies on Viamedia's disclosure of these 51 documents to litigation funding firms. The Court therefore need not reach the question of whether the attorney-client privilege applies to the documents.

         A. The Work-Product Doctrine

         The work-product doctrine generally protects from discovery “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed.R.Civ.P. 26(b)(3)(a); see generally Hickman v. Taylor, 329 U.S. 495 (1947). It serves two purposes, to “protect an attorney's thought processes and mental impressions against disclosure” and “to limit the circumstances in which attorneys may piggyback on the fact-finding investigation of their more diligent counterparts.” Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 621-22 (7th Cir. 2010). The doctrine helps ensure that our adversarial system of justice remains adversarial. See Hickman, 329 U.S. at 516 (Jackson, J., concurring) (“[A] common law trial is and always should be an adversary proceeding. Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.”).

         The party asserting work-product protection carries the burden of demonstrating its applicability. See Binks Mfg. Co. v. Nat'l Presto Indus., Inc., 709 F.2d 1109, 1118 (7th Cir. 1983) (noting that a party “failed to meet its burden of proof necessary to invoke the work product privilege”); United States ex rel. McGee v. IBM Corp., 2017 WL 1232616, at *1 (N.D. Ill. Apr. 4, 2017); Baxter Int'l, Inc. v. AXA Vericherung, No. 11-cv-9131, 2017 WL 1205071, at *3 (N.D. Ill. Mar. 30, 2017). “[T]he threshold determination in any case involving an assertion of the work product privilege . . . is whether the materials sought to be protected from disclosure were in fact prepared in anticipation of litigation.” Binks, 709 F.2d at 1118; see First Merit Bank, N.A. v. Teets, No. 15 C 01573, 2015 WL 8153878, at *4 (N.D. Ill.Dec. 8, 2015). “[T]he mere fact that litigation does eventually ensue does not, by itself, cloak materials . . . with the work product privilege; the privilege is not that broad.” Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 (7th Cir. 1996) (second alteration in original) (quoting Binks, 709 F.2d at 1118); Teets, 2015 WL 8153878, at *4. Courts instead should “look to whether in light of the factual context ‘the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'” Logan, 96 F.3d at 976-77 (quoting Binks, 709 F.2d at 1119); see also Sandra T.E., 600 F.3d at 622.

         “There is a distinction between precautionary documents ‘developed in the ordinary course of business' for the ‘remote prospect of litigation' and documents prepared because ‘some articulable claim, likely to lead to litigation, [has] arisen.'” Sandra T.E., 600 F.3d at 622 (emphasis in original) (quoting Binks, 709 F.2d at 1120). Only in the latter class of documents receive work-product protection. Id. Documents prepared solely to lobby a government agency to take action are not prepared in anticipation of litigation and therefore are not entitled to work-product protection. See, e.g., In re Special September 1978 Grand Jury (II), 640 F.2d 49, 65 (7th Cir. 1980) (concluding the work-product privilege did not apply where, “[a]lthough litigation could ultimately have ensued, ” the materials in question were “[a]t most, . . . prepared with an eye toward a possible administrative proceeding before the IRS”); Harper-Wyman Co. v. Conn. Gen. Life Ins. Co., No. 86 C 9595, 1991 WL 62510, at *3 (N.D. Ill. Apr. 17, 1991) (“[T]he court's review of defendant's documents suggests only that these documents were prepared in connection with the ACLI lobbying effort. Such an effort is generally not ‘litigation.'”); In re Grand Jury Subpoenas dated March 9, 2001, 179 F.Supp.2d 270, 285 (2001); P. & B. Marina, Ltd. P v. Logrande, 136 F.R.D. 50, (E.D.N.Y. 1991) (“Seaview's use of a lobbyist appears to have been intended to avert litigation by applying political pressure to federal agencies which could affect plaintiffs' marina operation. As such, the correspondence from Seaview's lobbyist was not directed towards anticipated litigation but rather toward non-litigation means that could achieve the same results in lieu of litigation. Such efforts are not equivalent to litigation nor subject to the work-product immunity . . . .”).

         Work-product protection is subject to waiver based on disclosure to a third party, but only where the disclosure “substantially increase[s] the opportunity for potential adversaries to obtain the information.” Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018, 1025 (7th Cir. 2012); see Miller UK Ltd. v. Caterpillar, Inc., 17 F.Supp.3d 711, 736 (N.D. Ill. 2014); 2 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 5:38 (4th ed. 2016) (“Work product protection is lost if the client, attorney, or authorized representative of the client voluntarily discloses the underlying material under circumstances substantially increasing the possibility that an opposing party will obtain the information.”). Waiver of work-product immunity therefore differs from waiver in the attorney-client-privilege context. See Mueller & Kirkpatrick, supra, § 5:38. The reason for this difference is the work-product doctrine's roots in the adversarial process-the point of the protection is not to keep information secret from the world at large but rather to keep it out of the hands of one's adversary in litigation. See id., see also Miller UK, 17 F.Supp.3d at 736.

         B. Analysis

         Viamedia contends that the 51 documents at issue are protected by both the attorney-client privilege and the work-product doctrine. (R. 117 at 3.) Defendants argue that Viamedia's assertion of work-product protection was untimely with respect to nineteen of the documents because in a May 2016 privilege log submitted to the DOJ, Viamedia claimed only attorney-client privilege with respect to those documents, but in May 2017, about two months after Viamedia had supplemented that log, Viamedia reclassified seventeen of those documents as also protected by the work-product doctrine. (R. 106 at 2, 11-12; R. 118 at 3.) The remaining two documents of the nineteen are attachments to an email over which Viamedia asserted work-product protection, which itself is one of the seventeen documents that Viamedia had reclassified. (R. 117 at 3.) While Viamedia should have taken greater care in preparing its privilege logs, the Court will not impose the harsh sanction of waiver based on Viamedia's conduct, particularly because of the large number of documents involved in this case and, significantly, because the Court cannot conclude that Defendants were unfairly prejudiced. See In re: Fluidmaster, Inc., No. 14-cv-05696, 2016 WL 6599947, at *5 (N.D. Ill. Nov. 8, 2016) (declining to find waiver of a privilege based in part on a lack of prejudice); Mills v. Cmty. Action Program of Evansville & Vanderburgh Cty., No. 3:12-cv-64-RLY-WGH, 2013 WL 1703742, at *5 (S.D. Ind. Apr. 19, 2013) (declining to find waiver based on a delayed assertion of privilege ...

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