United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole, Magistrate Judge
parties in this insurance coverage case, who are also counsel
in the case before Judge Feinerman, 17 C 1995, have a dispute
about the discoverability of a very substantial number of
emails. The parties have agreed that the ruling here is
applicable to both cases.
defendant's position is that its claim of privilege under
the attorney-client (or in some instances, work product)
privilege insulates the objected to documents from discovery.
The plaintiff, with equal vigor, questions the assertion of
privilege. The controversy initially resulted from the manner
in which the defendant's privilege log was prepared:
there were a number of instances in which the author or the
recipient, or both, of the withheld document was not revealed
on the log, thereby making meaningful review of the claim of
privilege impossible. See Crom, LLC v. Preload, LLC,
2017 WL 2408126, at *1 (N.D. Fla. 2017); MapleWood
Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D.
550, 584 (S.D. Fla. 2013). The defendant claims to have cured
those deficiencies through updated privilege logs.
privilege logs are a recurring and significant problem in
federal litigation. See e.g., United States ex
rel. McGee v. IBM Corp., 2017 WL 1232616, at *2 (N.D.
Ill. 2017); Slaven v. Great Am. Ins. Co., 2014 WL
4470723, at *2 (N.D. Ill. 2014); Baxter Travenol
Laboratories, Inc. v. Abbott Laboratories, 1987 WL
12919, *1 n. 1 (N.D.Ill. 1987)(“Baxter failed to
identify or justify a claim of privilege in many instances
and identified each document in such summary fashion that
hundreds of hours have been required to evaluate Baxter's
claims.”). And privilege can be almost as vexing as the
litigation itself. See e.g., Vioxx Prod. Liab. Litig.
Steering Comm. v. Merck & Co., Inc., 2006 WL
1726675, at *2 (5th Cir.2006)(the“district judge
undertook the herculean task of personally reviewing 30, 000
documents over a two-week period.”).
Rule 34 of the Federal Rules of Civil Procedure, a party
generally has 30 days to respond to a document request,
including the production of a privilege log. Compliance with
the requirements of Rule 26(b)(5)(A) is not optional,
Cormack v. United States, 118 Fed.Cl. 39, 42-43
(2014), and noncompliance can, in the discretion of the
court, have serious consequences, including a finding that
the claim of privilege has been waived or forfeited. See
Equal Employment Opportunity Comm'n v. BDO USA,
L.L.P., 876 F.3d 690, 697 (5th Cir. 2017);
Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court
for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005);
Kannaday v. Ball, 292 F.R.D. 640, 647 (D. Kan.
most courts are reluctant to find a claimed privilege is
automatically waived if a log is not filed within this time
frame. See Burlington N. & Santa Fe Ry. Co., 408
F.3d at 1147-1149. And many have held that a court must make
a “case-by-case determination” of whether
privilege should be deemed waived: they have required a
“holistic” reasonableness analysis, intended to
forestall needless waste of judicial time and resources, as
well as tactical manipulation of the rules and the discovery
process. See Holifield v. United States, 909 F.2d
201, 204 (7th Cir. 1990); In re Subpoena to Produce
Documents of Clapp, Moroney, Bellagamba, Vucinich, Beeman
& Scheley, 2014 WL 3784112, at *3 (N.D. Cal. 2014).
attorney-client or work product privilege claim can be so
insubstantial and obstructive without an appropriate basis
that to sustain it would trivialize the privileges
themselves. Banks v. Office of Senate Sergeant-At-Arms
& Doorkeeper, 236 F.R.D. 16, 21 (D.D.C. 2006). In
the end, reliance must be placed on the good faith and skill
of counsel, coupled with adherence to the rule requiring the
privilege logs be crafted in such a way that at least an
initial review will be informative and thus yield meaningful
begin with the general principles applicable to the
attorney-client privilege and the work product doctrine as
they have long been articulated and applied in cases
throughout the Nation.
attorney-client privilege is the oldest of the recognized
privileges for confidential communications known to the
common law. United States v. Jicarilla Apache
Nation, 64 U.S. 162 (2011); Jaffee v. Redmond,
518 U.S. 1, 11 (1996); Upjohn Co. v. United States,
449 U.S. 383, 389 (1981). Deeply rooted in public policy,
In re Ford Motor Co., 110 F.3d 954, 966 (3d
Cir.1997), and playing a “vital role” in the
administration of justice, American Nat. Bank and Trust
Co. of Chicago v. Equitable Life Assur. Soc. of U.S.,
406 F.3d 867, 878 (7th Cir.2005), it remains a carefully
guarded privilege. See Swidler & Berlin v. United
States, 524 U.S. 399, 403 (1998). The privilege's
central concern - and its ultimate justification - is to
encourage full and frank communication between attorneys and
their clients and thereby promote broader public interests in
the observance of law and the administration of justice.
Without that frankness, sound legal advice is impossible, and
without informed advice, the ultimate goal of the
attorney-client privilege is unattainable. Upjohn,
449 U.S. at 389.
privilege extends to confidential communications between
counsel and his or her client “[w]here legal advice of
any kind is sought ... from a professional legal advisor in
his capacity as such.” Rehling v. City of
Chicago, 207 F.3d 1009, 1019 (7th Cir.2000). See
also United States v. Evans, 113 F.3d 1457, 1461 (7th
Cir.1997). The question is whether the “primary”
or “predominant purpose” of the communication is
to render or solicit legal advice. See E.E.O.C. v. BDO
USA, L.L.P., 876 F.3d 690, 695 (5th Cir.
2017); In re City of Erie, 473 F.3d 413, 420
(2nd Cir. 2007); United States v.
Horvath, 731 F.2d 557, 562 (8th Cir. 1984);
Skyline Wesleyan Church v. California Dep't of
Managed Health Care, 2017 WL 4227026, at *10 (S.D. Cal.
2017); Dansko Holdings, Inc. v. Benefit Tr. Co.,
2017 WL 5593321, at *7 (E.D. Pa. 2017); Koumoulis v.
Independent Financial Marketing Group, Inc., 295 F.R.D.
28, 45-46 (E.D.N.Y. 2013); SmithKline Beecham Corp. v.
Apotex Corp., 232 F.R.D. 467, 482 (E.D. Pa. 2005).
the status of the drafter of the supposedly privileged
document is not decisive on the question of whether the
document is protected. It is for that reason that progress or
status reports, investigation summaries, and general updates
are generally not privileged merely because they were written
by a lawyer to the client. See Koumoulis, 295 F.R.D.
at 45-46; A & R Body Specialty & Collision Works,
Inc. v. Progressive Casualty Ins. Co., 213 WL 6044342 at
*3 (D. Conn. 2013); Navarrete v. Gov't Employee Ins.
Co., 2010 WL 11558228, at *22 (S.D. Fla. 2010); Wolf
Creek Ski Corp. v. Leavell-McCombs Joint Venture, 2006
WL 1119031, at *2 (D. Colo. 2006); In Re Sealed
Case, 737 F.2d 94 (D.C.Cir.1984)(“The letter
summarizes statements made by third persons to the
partnership's attorney, and neither reveals any
confidences of the client (the partnership) nor suggests a
legal opinion.”); United States v. Bonnell,
483 F.Supp. 1070, 1077 (D. Minn. 1979)(“the questioned
document does not reveal communications from Cargill to
Levine. The document is rather a summary of a meeting
attended by third parties.').
same is true of correspondence that merely notifies someone
of scheduling matters, SmithKline Beecham Corp., 232
F.R.D. at 482, or which updates the recipient. The latter do
not seek or disclose legal advice and thus, are not protected
by the attorney-client privilege. Loguidice v.
McTiernan, 2016 WL 4487779, at *16 (N.D.N.Y. 2016). The
same is true of routine communications between the attorneys
and the claims handlers relating to scheduling and other
innocuous status updates. The rule of exclusion also applies
to work product claims. Smith v. Scottsdale Ins.
Co., 40 F.Supp.3d 704, 727 (N.D. W.Va.
as in most jurisdictions, a claim of privilege generally
“must be made and sustained on a question-by-question
or document-by-document basis.”United States v.
White, 950 F.2d 426, 430 (7th Cir. 1991). Accord,
Heriot v. Byrne, 257 F.R.D. 645, 667 (N.D. Ill. 2009).
Cf., Am. Nat. Bank & Tr. Co. of Chicago v. Equitable
Life Assur. Soc. of U.S., 406 F.3d 867, 878 (7th Cir.
2005). But see In re Vioxx Prod. Liab. Litig., 501
F.Supp.2d 789, 815 (E.D. La. 2007)(recognizing that sampling
may be an appropriate technique under certain circumstances).
The privilege, like all testimonial privileges and all
exclusionary rules, comes at a price. Since it makes the
search for truth more difficult by preventing disclosure of
what is often exceedingly relevant information, the privilege
“contravene[s] the fundamental principle that
‘the public ... has a right to every man's
evidence, '” and is therefore strictly construed.
University of Pennsylvania v. E.E.O.C., 493 U.S.
182, 189 (1990). See also Pierce County, Wash. v.
Guillen, 537 U.S. 129, 144-145 (2003);United States
v. Lawless, 709 F.2d 485, 487 (7th Cir.1983);
Radiant Burners, Inc. v. Am. Gas Ass'n, 320 F.2d
314, 323 (7th Cir. 1963). The privilege is limited to those
instances where it is necessary to achieve its purposes.
Fisher v. United States, 425 U.S. 391, 403 (1976);
Jenkins v. Bartlett, 487 F.3d 482, 490
(7th Cir. 2007).
the privilege exists is a fact intensive inquiry, In re
Grand Jury Proceedings, 220 F.3d 568, 571
(7th Cir. 2000), and cannot be solved by simply
looking to the identity of the sender or recipient of a
communication. See In re: Subpoena Upon Nejame Law
PA, 2016 WL 3125055 at *3 (N.D.Ill. 2016). The burden of
proof is always on the party claiming privilege. Shaffer
v. AMA, 662 F.3d 439, 446 (7th Cir. 2011).
Thus, the lawyer-client relationship, itself, “does not
create ‘a cloak of protection which is draped around
all occurrences and conversations which have any bearing,
direct or indirect, upon the relationship of the attorney
with his client.'” In re Walsh, 623 F.2d
489, 494 (7th Cir.1980). See also Burden-Meeks v.
Welch, 319 F.3d 897, 899 (7th Cir.2003). Consequently,
not all communications between an attorney and client are
privileged. Information such as the identity of the client,
the amount of the fee, the identification of payment by case
file name, the general purpose of the work performed, and
whether an attorney coached a client in his testimony is not
privileged. Elan Microelectronics Corp. v. Pixcir
Microelectronics Co., 2013 WL 4499006, at *4 (D. Nev.
2013). Merely communicating with a lawyer or copying a lawyer
on an otherwise non-privileged communication, will not
transform the non-privileged communication or attachment into
a privileged one, even if the otherwise non-privileged
communication was at the behest of the lawyer. See Bell
Microproducts, Inc. v. Relational Funding Corp., 2002 WL
31133195, at *1 (N.D.Ill.2002)(instruction from an attorney
to employees to copy him as a recipient on any emails or
documents in order to assure attorney-client privilege was
not by itself enough to make the document privileged).
“‘[c]ommunications from attorney to client are
privileged only if they constitute legal advice, or tend
directly or indirectly to reveal the substance of a client
confidence.'” Judson Atkinson Candies, Inc. v.
Latini-Hohberger Dhimantec, 529 F.3d 371, 388 (7th Cir.
2008). See also United States v. Leonard-Allen, 739
F.3d 948, 952-53 (7th Cir. 2013). Thus, communications from a
lawyer are not necessarily covered by a privilege where the
lawyer is not performing a legal function. See the
lengthy discussion in Slaven v. Great American Ins.
Co., 83 F.Supp.3d 789, 793-94 (N.D.Ill.
2015). In the instant case, it would appear that
virtually any document that came from the defendant's
lawyer or was sent to her by the defendant was deemed to be
privileged by the defendant. That decision was improvident.
disclosure to a third party almost invariably surrenders the
privilege, In re Pebsworth, 705 F.2d 261, 263 (7th
Cir.1983), and as a general rule, statements made to
one's attorney in the presence of a third person are not
within the scope of the attorney-client privilege.
Jenkins, 487 F.3d at 490; Evans, 113 F.3d
at 1462. This is so despite the client's subjective
intention not to waive the privilege. Jenkins, 487
F.3d at 490; 8 Wigmore, Evidence § 2327. See
generally United States ex rel. McGee v. IBM, 2017 WL
1232616 (N.D. Ill. 2017).
attorney-client privilege to apply to a communication it must
have been made in confidence, in the connection with the
provision of legal services, to or by an attorney, and in the
context of an established or attempted attorney-client
relationship, United States v. Bey, 772 F.3d 1099,
1101 (7th Cir. 2014); United States v. BDO Seidman,
LLP, 492 F.3d 806, 815 (7th Cir.2007). United States
v. (Under Seal), 748 F.2d 871, 874-75 (4th Cir. 1984),
or one that is sought to be made by the parties.
Communications will be protected if they rest on or would
reveal confidential information obtained from the client or
given to the client. Rehling, 207 F.3d at 1019;
United States v. Defazio, 899 F.2d 626, 635 (7th
Cir.1990). And simply copying a lawyer on an otherwise
non-privileged communication or turning it over to one's
lawyer will not transform the non-privileged document into a
privileged one. Lyondell Chem. Co. v. Occidental Chem.
Corp., 608 F.3d 284, 300 (5th Cir. 2010); McCullough
v. Fraternal Order of Police, Chicago Lodge 7, 304
F.R.D. 232, 237 (N.D.Ill.2014). See also Radiant Burners,
Inc. v. American Gas Ass'n, 320 F.2d 314, 324 (7th
Cir.1963). See Northern Valley Communications, L.L.C. v.
Qwest Communications Corp., 2010 WL 3672233, *4
addition to protecting certain communications from the client
to the attorney, communications from the attorney to the
client may be privileged, but only if they constitute legal
advice or would reveal the substance of a client
confidence-directly or indirectly. United States v.
Leonard-Allen, 739 F.3d 948, 952-53 (7th Cir. 2013);
Judson Atkinson Candies, Inc. v. Latini-Hohberger
Dhimantec, 529 F.3d 371, 388 (7th Cir. 2008); United
States v. Defazio, 899 F.2d 626, 635 (7th Cir.1990);
United States v. (Under Seal), 748 F.2d 871, 874
(4th Cir. 1984); Koumoulis, 295 F.R.D. at
45-46; Vill. of Rosemont v. Priceline.com Inc., 2010
WL 4876217, at *3 (N.D. Ill. 2010); Jones v. Murphy,
2009 WL 604937 at *1 (D.Md. 2009). Cf. Vardon Golf Co.,
Inc. v. Karsten Mfg. Corp., 213 F.R.D. 528, 531
general concern for protecting “confidentiality”
should not, result in the application of the attorney-client
privilege or the recognition of the privilege when wrongfully
claimed. Thus, simply labeling a document
“confidential” or “privileged” will
not result in the document being protected from disclosure by
the attorney-client privilege. Throughout the law, it is
beyond debate that labels do not control; substance does.
Colorado Republican Fed. Campaign Comm. v. Fed. Election
Comm'n, 518 U.S. 604, 622 (1996); Mordi v.
Ziegler, 870 F.3d 703, 708 (7th Cir. 2017);
Rebirth Christian Academy Day Care, Inc. v. Brizzi ,
835 F.3d 742 (7th Cir. 2016); Blue Cross Blue
Shield of Mass., Inc. v. BCS Ins. Co., 671 F.3d 635, 637
(7th Cir. 2011). Questions relating to the
attorney- client privilege are not an exception to this basic
principle. Perry v. Jeep Eagle Corp., 1989 WL
118750, at *6 (S.D. Ind.1989); Employer's Reinsurance
Corp. v. Clarendon Nat. Ins. Co., 213 F.R.D. 422, 430
(D. Kan. 2003). Thus, a party's partisan designation of a
document is, in and of itself, inadequate to create a viable
claim of privilege. See Great Plains Ventures, Inc. v.
Liberty Mutual Fire Ins. Co., 215 WL 404977, at *6
(D.Kan. 2015). The unfortunate reality is that
“[l]abels such as ‘Attorney Client Privilege'
and ‘Attorney Work Product' are overused on
documents that do not truly qualify for protection.”
Employer's Reinsurance Corp., 213 F.R.D. at 430.
WORK PRODUCT DOCTRINE
then to the work product doctrine, which also appears from
time to time on the defendant's privilege log as a basis
for the withholding of certain documents. The attorney work
product privilege establishes a zone of privacy in which
lawyers can analyze and prepare their client's case free
from scrutiny or interference by an adversary. It protects
documents prepared by attorneys in anticipation of litigation
for the purpose of analyzing and preparing a client's
case. Sandra T.E, 600 F.3d at 618; Hobley v.
Burge, 433 F.3d 946, 949 (7th Cir.2006); Slaven v.
Great American Ins. Co., supra. The core of
attorney work product consists of “the mental
impressions, conclusions, opinions, or legal theories of a
party's attorney or other representative concerning the
litigation.” Fed. R. Civ.P. 26(b)(3)(B). Materials
containing this information “are out of
bounds....” Mattenson v. Baxter Healthcare
Corp., 438 F.3d 763, 768 (7th Cir.2006). See
generally Miller UK Ltd. v. Caterpillar, Inc., 17
F.Supp.3d 711, 734 (N.D. Ill. 2014). See generally
the discussion in Slaven v. Great American Ins. Co.,
the doctrine is the deeply held view that the opposing party
“shouldn't be allowed to take a free ride on the
other party's research, or get the inside dope on that
party's strategy, or ... invite the [trier of fact] to
treat candid internal assessments of a party's legal
vulnerabilities as admissions of guilt.” Menasha
Corp. v. U.S. Dept. of Justice, 707 F.3d 846, 847 (7th
Cir.2013). Justice Jackson's inimitable phrasing has yet
to be improved on: “Discovery was hardly intended to
enable a learned profession to perform its functions either
without wits or on wits borrowed from the adversary.”
Hickman v. Taylor, 329 U.S. 495, 516 (1947)(Jackson,
cases contain language that the burden is on the party
claiming protection to show that anticipated litigation was
the “driving force behind the preparation of each
requested document.” In re Professionals Direct
Insurance. Co., 578 F.3d 432, 439 (6th Cir.2009). The
majority in United States v. Adlman, 134 F.3d 1194
(2nd Cir.1998) rejected the “primarily to assist in
litigation test, ” in favor of the “because
of” test, explaining that “[i]n addition to the
plain language of the Rule, the policies underlying the
work-product doctrine suggest strongly that work-product
protection should not be denied to a document that analyzes
expected litigation merely because it is prepared to assist
in a business decision.” The majority held that framing
the inquiry as whether the primary or exclusive purpose of
the document was to assist in litigation “threatens to
deny protection to documents that implicate key concerns
underlying the work-product doctrine.” Id. at
majority looked to the analysis in the Wright & Miller
treatise: whether, in light of the nature of the document and
the factual situation in the particular case, the document
can fairly be said to have been prepared or obtained
“because of” the prospect of litigation. Any
other inquiry, the majority held, could unreasonably deny the
protection to “dual purpose” documents generated
in making the decision whether to enter into a transaction
based upon tax litigation concerns, even though such
documents could reveal an attorney's litigating
strategies and assessment of legal vulnerabilities
-“precisely the type of discovery that the Supreme
Court refused to permit in Hickman.”
Id. at 1199. The majority concluded. “as most
other courts have held, ” “the ‘because
of' test [in Wright & Miller] is the proper way to
determine whether a document was prepared ‘in
anticipation of litigation' and thus is eligible for
protection under [Rule] 26(b)(3).” This is the
formulation employed by the Seventh Circuit in Binks Mfg.
Co. v. National Presto Industries, Inc., 709 F.2d 1109,
1119 (7th Cir.1983), which held that “‘the test
should be whether, in light of the nature of the document and
the factual situation in the particular case, the document
can fairly be said to have been prepared or obtained because
of the prospect of litigation.'” See also Logan
v. Commercial Union Insurance. Co., 96 F.3d 971, 977
the attorney-client privilege promotes the attorney-client
relationship, and, indirectly, the functioning of our legal
system, by protecting the confidentiality of certain
communications between clients and their attorneys, the
work-product doctrine promotes the adversary system directly
by protecting the confidentiality of papers prepared by or on
behalf of attorneys in anticipation of litigation.
Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018, 1022
(7th Cir.2012); Westinghouse Elec. Corp. v. Republic of
Philippines, 951 F.2d 1414, 1428 (3rd Cir.1991);
E.E.O.C. v. FAPS, Inc., 2012 WL 1656738, 28
the doctrine serves to protect an attorney's work product
from falling into the hands of an adversary, a disclosure to
a third party does not automatically waive work-product
protection. Westinghouse Elec. Corp., 951 F.2d at
1428. See also Adkins Energy, LLC v. Farmland Mut.
Insurance. Co., 2009 WL 1259344, 2 (N.D.Ill.2009);
Jumper v. Yellow Corp. et al., 176 F.R.D. 282, 287
n. 5 (N.D.Ill.1997). A waiver occurs “when the
protected communications are disclosed in a manner that
“‘substantially increase[s] the opportunity for
potential adversaries to obtain the information.' ”
Appleton Papers, Inc., 702 F.3d at 1025.
must be a concrete dispute between parties; the abstract
possibility of a hypothetical lawsuit; the “general
possibility of litigation” is not enough. A document is
prepared in anticipation of litigation when there is
“an actual claim or a potential claim following an
actual event or series of events that reasonably could result
in litigation.” Gould Inc. v. Mitsui Mining &
Smelting Co., 825 F.2d 676, 680 (2nd Cir.
1987). See Maracich v. Spears, 570 U.S. 48 (2013).
The mere contingency that litigation may result is not
determinative. Baxter Healthcare Corp., 438 F.3d
763, 768 (7th Cir. 2006); Logan v. Commercial
Union Ins. Co., 96 F.3d 971, 976 (7th Cir.
1996); Tellabs Operations, Inc. v. Fujitsu, Ltd.,
283 F.R.D. 374, 688 (N.D.Ill. 2012). The claimed
“inevitability” of litigation in the context of
an insurance company's business does not always mean that
pre-denial activities of a carrier are, in every case, within
the meaning of Rule 26(b). See Lagestee Mulder, Inc.
v. But a reasonable anticipation of litigation will
generally suffice even though a formal suit has not yet been
filed. One Place Condominium LLC v. Travelers Property
Casualty Co. of America, 2013 WL 788092 at *4 (N.D.Ill.
2013). The requirement of concreteness cannot be
Supreme Court has explained, “the literal language of
[Rule 26(b)(3)] protects materials prepared for any
litigation or trial as long as they were prepared by or for a
party to the subsequent litigation.” Federal Trade
Commission v. Grolier Inc., 462 U.S. 19, 25 (1983).
See also NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 138 (1975). It is not enough that the materials were
prepared by lawyers or represent legal thinking. Much
corporate material prepared in law offices or reviewed by
lawyers falls in that vast category. It is only work done in
anticipation of or for trial that is protected. Even if
prepared by lawyers and reflecting legal thinking,
“[m]aterials assembled in the ordinary course of
business, or pursuant to public requirements unrelated to
litigation, or for other nonlitigation purposes are not under
the qualified immunity provided by' the doctrine and
Fed.R.Civ.P. 26. United States v. Textron Inc. &
Subsidiaries, 577 F.3d 21, 29-30 (1st Cir. 2009)
the attorney client privilege, the burden is on the party
seeking to withhold material from discovery on work product
grounds to demonstrate by competent evidence and with
particularity that the work produced doctrine applies to each
document that is claimed to be privileged. BDO
Seidman, 337 F.3d at 811. Blanket claims of privilege or
conclusory assertions are insufficient to carry the burden.
Where work product is claimed, the party asserting waiver has
the burden to show that a waiver occurred. Ecuadorian
Plaintiffs v. Chevron Corp., 619 F.3d 373, 379 (5th
with the above principles in mind that the defendant's
claims of privilege and work product will be decided.
BRIEF EXPLANATION OF THE RULINGS ON DOCUMENTS AND THE NEED
NOT TO SQUANDER JUDICIAL RESOURCES
every document the defendants have submitted for in
camera inspection has been reviewed - some more than
once - due to the volume of materials, a document-by-document
explanation will not be provided. The review, it must be
said, was surprising in that so many of the documents could
not, consistent with the basic and long standing principles
articulated by the Seventh Circuit and other courts, be
deemed privileged. Illustrative of the often over broad and
unfounded claims of privilege is Document PHILCL007107.
nothing more than a brief cover email from defendants'
attorney stating, in full: “Please see attached for
your files. Please contact me with any questions. We hope you
have a good weekend.” We are told - not in any
privilege log, but in a letter dated November 29, 2017 - that
this document was withheld based on attorney client
privilege. Nowhere in these three sentences is any advice
given or any client confidence revealed. This claim of
privilege surely can't be squared with the unbroken line
of authority that holds that privilege does not exist merely
because a letter emanates from a lawyer to her client.
See cases cited supra at 7-8. These types
of letters, many of which simply summarize the status of
things, appear to be the plurality of the mass of materials
the defendant has submitted for in camera inspection
while claiming they are privileged. Unfortunately, this sort
of indiscriminate insistence that materials are privileged
appears all too often in modern litigation. Many more
documents fall into this category and, of course, they will
be required to be produced.
large portion of the documents the defendant claims to be
privileged are nothing more than updates. An email telling
the client a letter was sent, or a meeting was being
scheduled, or a response was due from the other side,
see, e.g., PHILCL007102, PHILCL007103, PHILCL007104,
PHILCL007106, PHILCL007124, PHILCL007130, PHILCL007132,
PHILCL007137, PHILCL007145, PHILCL001061, PHILCL001072, etc.
are not privileged - unless, of course, we are to abandon the
traditional and basic definition of attorney client
privilege. The inescapable fact is that none of these kinds
of materials reveal advice, or strategy, or disclose client
number of other documents in this category are said to be
privileged although they summarize what occurred in court
hearings. So, for example, Document PHILCL001095 says,
inter alia, that Judge Feinerman has set a discovery
schedule, notes the due dates, informs of a status date, and
so on. Beyond being mere updates revealing no client
confidences or advice, such things are a matter of public
record. As for work product, the events are certainly not
unknown to opposing counsel, and so, the information does not
“enable [plaintiff's counsel] . . . to perform its
functions either without wits or on wits borrowed from the
adversary.” Hickman, 329 U.S. at 516 (Jackson,
J., concurring). Thus, the “specific assertions of
[work product] privilege are [not] reasonably consistent with
the purposes for which” the privilege was created.
Appleton Papers, Inc., 702 F.3d at 1025. All these
types of documents, without question, must be produced.
there are a fair number of documents that either describe
information shared with opposing counsel or information
received from opposing counsel. For example, in Document
PHILCL007162, defendants' attorney tells her client what
she wrote to opposing counsel in a letter:
We have sent a letter to the insured's counsel requesting
a scope and estimate of the claimed hail damage and necessary
repairs, and indicated that Philadelphia would like to
conduct a re-inspection of the property, even if we don't
have the scope and estimate in hand. We stated that a
re-inspection should be coordinated with the independent
adjustor, George Dorsch, and that Towne Place was free to
have its own consultant present, too.
only does such a document fail to reveal any client
confidences or advice, the information is not confidential
because it was shared with opposing counsel. A similar
example is Document PHILCL007167. It is a cover letter for a
letter from plaintiff's counsel which describes the
contents of that letter. It's certainly not information
gained in confidence from the defendant, and it's
certainly not any secret to the other side. While the sharing
of actual confidential information with the other side would
clearly constitute a waiver, see, e.g., United States v.
White, 970 F.2d 328, 334 (7th Cir. 1992); Appleton
Papers, Inc., 702 F.3d at 1024, the information revealed
in this category of documents was not intended to be
confidential in the first place. Cf. In re Grand Jury
Proceedings, 220 F.3d 568, 571 (7th Cir.
2000)(information used in preparation of tax return). As with
the types of documents already discussed, these materials
must be produced.
distressing about so many of the claims of privilege in this
and like cases, is that the assertions of privilege are made
reflexively, without sufficient regard to the long standing
definitions of the attorney client and work product
privileges. Judges should be on guard not to approve of
privilege claims that are hopelessly inconsistent with basic
principles and which trivialize the “privileges”
that are invoked. Improper and needless assertions of
privilege needlessly sap the necessarily limited time of
judges, forcing parties with substantial disputes to wait in
a longer queue and condemning them to receive less judicial
attention when their cases finally are heard. This is a
significant problem on which the Seventh Circuit in other
contexts has spoken. See Szabo Food Service, Inc. v.
Canteen Corp., 823 F.2d 1073, 1077 (7th Cir.
1987); Channell v. Citicorp Nat. Services, Inc., 89
F.3d 379, 386 (7th Cir. 1996). These concerns
apply equally in a privilege context, where courts have
consistently expressed the same underlying frustration. As
the court in Puckett v. Ocwen Loan Servicing, LLC,
2016 WL 6828609, at *7 (S.D.W.Va. 2016), “gamesmanship
must be discouraged so as to avoid the waste of valuable and
limited judicial resources. Frankly, there is nothing even
remotely close about these matters that are privileged as
asserted by Defendant.” See also In re
Grand Jury Subpoena (Mr. S.), 662 F.3d 65, 71 (1st Cir.
defendant has submitted to me copies of the large volume of
documents on which privilege is being claimed and copies of
revised privilege logs that it provided to the plaintiff.
Those logs are specific in terms of the privilege that is
being claimed. Thus, both attorney client privilege and work
product protection claims are not jointly claimed, save in a
few instances. That is, most attorney client privilege
assertions do not also contend that the document is protected
by the work product doctrine. In ruling on the objections, we
have, of course, relied solely on the protection claimed,
without regard to whether, for example, claimed protection
that was not raised might also be applicable to the privilege
expressly raised. “A court does a disservice to the
system, and to one party when it assists the other party in
the presentation of its case. Indeed, the Seventh Circuit has
cautioned courts not to go beyond the parties'
presentations. See Hartmann v. Prudential Ins. Co.,
9 F.3d 1207, 1214 (7th Cir.1993); Weissman v.
Weener, 12 F.3d 84, 86 (7th Cir.1993). “The
benefit of adversarial presentation is a major reason why
judges should respond to the parties' arguments rather
than going off independently.” Kay v. Board of
Educ. of City of Chicago, 547 F.3d 736, 738 (7th
Cir.2008). See also WWC Holding Co., Inc. v. Sopkin,
488 F.3d 1262, 1279-1280 (10th Cir.2007) (Gorsuch, J.,
ruling on the documents that have been provided to me, I have
ruled only on those highlighted portions which contained
yellow highlighting. It was my understanding that if a
document contained only portions highlighted in yellow, the
non-highlighted portions had been disclosed and only the
highlighted portions had not been. Where a document contained
both highlighted and regular type, it was my understanding
that no privilege was being claimed as to the non-highlighted
information. Where the document contained no underlining, it
was my understanding that the entire document had been
withheld under a claim of privilege.
WITH BATES NUMBERS BEGINNING WITH THE LETTERS, ICS
The highlighted portion is privileged.
The first paragraph beginning with the word,
“Discussed”is not privileged. The second
paragraph beginning with the words, I hope” is not
privileged. The third paragraph, beginning with the words,
“There is no...” is not privileged except for
portion beginning with the words “it would be”
and ending with the words “ ”the
claim?”which is privileged. The last sentence of the
document is privileged.
The highlighted portion is not privileged.
This is a duplicate of 001899.
DOCUMENTS BEGINNING WITH THE LETTERS, PHILCL
ruling on the specific documents, we are only ruling on the
entries that are highlighted by counsel in yellow before the
materials were submitted for in camera review. This
will apply to all the materials submitted regardless of the
beginning prefix, i.e. PHILCL.
Privileged and pertains to reserves.
Not producible. Pertains to reserves.
is not privileged.
the first, third, and sixth blocks are privileged;
the fifth and eight blocks are not privileged, the remainder
that is highlighted is privileged;
the first highlighted entry is not privileged, the succeeding
two are privileged;
the highlighted entries are privileged;
the top entry is privileged;
the three highlighted entries are privileged;
the first highlighted entry is privileged, the other is not;
the highlighted entry is privileged;
the second highlighted entry (9/3/2014) is privileged, the
remainder are not.
- 000202 - the entries relate to reserves and are
- 402 - are not privileged;
- is producible except for the entries under description many
of which are arguably privileged (although they would provide
no information of any value);
The second, fourth and fifth paragraphs are privileged.