Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Schmalz v. Village of North Riverside

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

February 7, 2018

FRANK SCHMALZ, Plaintiff,
v.
VILLAGE OF NORTH RIVERSIDE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          MARY M. ROWLAND UNITED STATES MAGISTRATE JUDGE.

         Plaintiff's Motion to Declare Privileges Asserted by Defendants Waived and/or Stricken and for Other Relief [175] is granted in part, denied in part.

         I. DISCUSSION

         Plaintiff Frank Schmalz (“Plaintiff”) seeks an order compelling Defendants to produce certain documents listed on a privilege log and withheld as privileged.[1]Specifically, Plaintiff argues that Defendants: (1) improperly invoked “attorney-client” privilege over 142 emails between non-lawyers, (listed on Dkt. 191-1, Exhibit 1); and (2) improperly asserted the “insurer-insured” privilege over 68 emails, (listed on Dkt. 191-2, Exhibit 2).[2] The Court addresses each of the asserted privileges in turn.

         A. Attorney-client privilege extending to non-attorney third parties

         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 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 Co. v. United States, 449 U.S. 383, 389 (1981). “However, since the privilege has the effect of withholding relevant information from the fact-finder, it applies only where necessary to achieve its purpose. Accordingly it protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” Fisher v. United States, 425 U.S. 391, 403 (1976). Thus, “because the privilege is in derogation of the search for the truth, it is construed narrowly.” Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007) (citation omitted); see United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983) (scope of privilege should be “strictly confined within the narrowest possible limits”); Dexia Credit Local v. Rogan, 231 F.R.D. 268, 272 (N.D. Ill. 2004) (“The Illinois Supreme Court has ... stated that it is the attorney-client privilege, not the duty to disclose, that is the exception and, therefore, the privilege ought to be strictly confined within its narrowest possible limits.”) (citation omitted).

         Defendants are correct that the attorney-client privilege can extend to communications between non-attorney third parties where “the communications rest on confidential information obtained from the client, or would reveal the substance of a confidential communication by the client.” In re Sulfuric Acid Antitrust Litigation, 235 F.R.D. 407, 433 (N.D. Ill. 2006) (finding non-attorney communications privileged that because they disclosed the content of a confidential attorney-client communication.). However, “a lawyer must have some relationship to the communication such that the communication(s) between the non-lawyer employees would ‘reveal, directly or indirectly, the substance of a confidential attorney-client communication.'” Heriot v. Byrne, 257 F.R.D. 645, 666 (N.D. Ill. 2009)(noting that application of the attorney-client privilege to third parties' communications “should be limited to instances where a third party . . . assists a lawyer in giving legal advice, ” and “where the third party's participation was required to enable the attorney to render legal advice.”) (citations omitted).

         It is well-settled that the “party seeking to invoke the privilege bears the burden of proving all of its essential elements.” Evans, 113 F.3d at 1461. Indeed, “each of these elements must be established as to each document, as the mere existence of an attorney-client relationship is not sufficient to cloak all communications with the privilege.” Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84, 86 (N.D. Ill. 1992). Accordingly, “it is first incumbent upon the Defendants to show why the privilege applies to each specific non-attorney communication.” See Stopka v. Am. Family Mut. Ins., 816 F.Supp.2d 516, 527 (N.D. Ill. 2011) (granting motion to compel when the privilege log failed to show how the attorney-client privilege applied to each non-attorney e-mail at issue.).

         Defendants argue that 142 email correspondences between non-attorney third parties are protected by the attorney-client privilege because: 1) they constitute communications between non-lawyers who work for the Village of Riverside that were authored “for the purpose of assisting the lawyers to provide legal advice”; or 2) they were communications “where an employee within a defendant company provides another employee a summary of legal advice received from their attorneys pertaining to the Plaintiff.” (Dkt. 189 at 3) (citing Doe v. Johnson, 15C1387, 2015 WL 12834771, at *2 (N.D. Ill. Nov. 23, 2015); Weeks v. Samsung Heavy Indus. Co., Ltd., 93 C 4899, 1996 WL 341537, at *2 (N.D. Ill. June 20, 1996)). Defendants only discuss six of the 142 entries on the privilege log as examples of attorney-client privilege extending to non-attorney third party communications. For the remaining 136 items, Defendants provide no further details or information other than what is on the privilege log.

         Defendants contend that Document Nos. 163, 164, 168, and 169 are examples “where one of the defendants forwards an email from a Village attorney with legal advice or litigation strategy to other named defendants or Village employees overseeing the litigation on behalf of the municipal defendant.” (Dkt. 189 at 4). The Court agrees that any emails that are simply forwarding emails from counsel should be protected by the attorney-client privilege and need not be produced because such communications would “reveal, directly or indirectly, the substance of a confidential attorney-client communication.” In re Sulfuric Acid Antitrust Litigation, 235 F.R.D. at 433; see also RBS Citizens. v. Husain, 291 F.R.D. 209, 216 (N.D. Ill. 2013) (indicating that the communications must “constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence.”). The Court accepts defense counsels' representations that Document Nos. 163, 164 & 168 are instances where an employee was forwarding counsel's email to other Village employees. These documents need not be produced. However, there is no indication that Document No. 169 is a forwarded email, nor is there any information regarding the nature of the underlying confidential communication. This document must be produced.

         Defendants assert that Document Nos. 207 and 397 are examples of “communications between Defendants for the purpose of assisting their attorney in providing legal advice.” (Id.). However, the Court does not have enough information from the privilege log or the Defendants' brief to determine “whether the documents were prepared for the purpose of legal advice or whether they were intended to be confidential.” See In re General Instrument Corp. Securities Litigation, 190 F.R.D. 527, 531-32 (N.D. Ill. 2000).

         Even more troubling, as for the remaining 136 entries, Defendants offer no explanation as to why the attorney-client privilege is applicable to these specific documents, and the Court only has the privilege log to rely upon. The Court finds that Defendants' privilege log is not “sufficiently detailed to allow the court to determine whether the party asserting the privilege has discharged its burden of establishing the applicability of the privilege.” Muro v. Target Corp., No. 04 C 6267, 2006 WL 3422181, at *2 (N.D. Ill. Nov. 28, 2006). Pursuant to Rule 26(b)(5), a party withholding otherwise discoverable information must “describe the nature of the documents, communications, or things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A)(ii). As such, the party asserting the privilege must produce a privilege log “that identifies for each separate document the following information: the date, the author and all recipients, along with their capacities, the subject matter of the document, the purpose for its production and a specific explanation of why the document is privileged.” Muro, 2006 WL 3422181, at *2 (emphasis in original). Defendants have not done so here. None of the entries in the privilege log specify the name of the attorney involved in the underlying communication, the nature of the confidential attorney-client communication at issue, or the nature of the legal advice at issue. Document Nos. 374, 1046, 1048 and 1225 do not even contain a subject matter, title or description.

         Defendants were given a second bite at the apple to prepare a response to Plaintiff's motion, specifically to explain how the attorney-client privilege applies to these non-attorney communications. (See Dkt. 183). Defendants failed to meet their burden with regards to 139 of the 142 relevant documents. As such, except for Document Nos. 162, 164, and 168, the Court orders production of all of the remaining non-attorney communications. See In re General Instrument Corp. Securities Litigation, 190 F.R.D. 527, 531-32 (N.D. Ill. 2000) (ordering production of non-attorney communications when privilege log did not provide sufficient details for the Court to assess “whether the documents were prepared for the purpose of legal advice or whether they were intended to be confidential.”); see also Stopka, 816 F.Supp.2d at 527 (ruling that non-attorney emails were not privileged when there was no explanation as to why the attorney-client privilege applied); RBS Citizens, v. Husain, 291 F.R.D. 209, (N.D. Ill. 2013)(“Without any explanation of what the documents are, who authored them, or the purpose for which they were created, the Court determines that the vast majority of the disputed documents . . . are not in fact privi-leged.”)(emphasis added).

         B. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.