United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. ROWLAND UNITED STATES MAGISTRATE JUDGE.
Motion to Declare Privileges Asserted by Defendants Waived
and/or Stricken and for Other Relief  is granted in
part, denied in part.
Frank Schmalz (“Plaintiff”) seeks an order
compelling Defendants to produce certain documents listed on
a privilege log and withheld as privileged.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
The Court addresses each of the asserted privileges in turn.
Attorney-client privilege extending to non-attorney third
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
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).
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.).
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.
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.
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).
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.
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