United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. ROWLAND UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's Motion for Protective Order
Regarding Inadvertently Produced Opinion Work Product. For
the reasons set forth below, Plaintiff's Motion  is
(“Walker”) filed this § 1983 action against
Defendants alleging that his arrest and conviction for
possession of narcotics were based on fabricated evidence and
a conspiracy against him, which led to his false imprisonment
and ten years of incarceration before his conviction was
vacated and the charges against him dismissed. On June 20,
2017, the District Judge in this case granted in part and
denied in part Defendants' motions to dismiss. (Dkt. 99).
The Judge dismissed Count I as to the
Brady-violation due process claim, Count II against
Defendant Finnelly, and the federal malicious prosecution
claim with leave to replead. On November 1, 2017, Walker
filed his Second Amended Complaint charging Defendants with
fabri- cating and withholding evidence, failing to intervene,
conspiracy, malicious prosecution, and state law violations.
Motion, Walker seeks to bar Defendants from retaining or
using a previously-produced document which Walker claims was
inadvertently produced opinion work product. The document is
a letter written on August 24, 2010, by Plaintiff's
former criminal counsel in response to Plaintiff's ARDC
complaint against her (“Gill Letter”). In January
2017, Plaintiff's former counsel in this case, the law
firm Loevy & Loevy, produced the document as part of a
production of approximately 6, 000 documents. In July 2017,
Loevy & Loevy withdrew as counsel for Plaintiff. (Dkt.
108). Plaintiff's new counsel, Cogan & Power,
appeared in the case in August 2017. (Dkts. 113, 114). In
October 2017, in an email by defense counsel to Mr. Terranova
of Cogan & Power, defense counsel stated he wanted to
“make sure [Mr. Terranova was] aware of [the Gill
Letter].” (Dkt. 155-2 at 2). In December 2017, Cogan
& Power emailed defense counsel “as notification of
an inadvertent disclosure of both privileged material and
work product” in the Gill Letter. (Dkt. 155-3 at 2).
Walker brought the present motion, arguing that the Gill
Letter is protected work product and its disclosure was
inadvertent. In response, Defendants maintain that the
Gill Letter is not protected work product and even if it
were, the protection was waived first by attorney Gill in
responding to the ARDC and second by Walker's former
attorneys producing the document to Defendants.
The Work Product Doctrine
work product doctrine protects documents prepared in
anticipation of litigation by or for a party or its
representative. Fed.R.Civ.P. 26(b)(3)(A). The Federal Rules
protect both “fact” and “opinion”
work product. See Appleton Papers, Inc. v. EPA, 702
F.3d 1018, 1024 (7th Cir. 2012). Opinion work product often
receives even greater protection than fact work product
because it is the “mental impressions, conclusions,
opinions, or legal theories of a party's attorney.”
See id.; Fed.R.Civ.P. 26(b)(3)(B). Work product
protection is not absolute, however, and can be waived if
disclosed to adversaries or third parties “in a manner
which substantially increases the opportunity for potential
adversaries to obtain the information.” Rehco, LLC
v. Spin Master, Ltd., 2014 U.S. Dist. LEXIS 34111, *5
(N. D. Ill. 2014) (internal citations and quotations
omitted); see also Woodard v. Victory Records, Inc.,
No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512, at *24 (N.D.
Ill. May 21, 2014) (both types of work product protection can
work product doctrine is broader than the attorney-client
privilege (Apple-ton, 702 F.3d at 1024), and serves
“dual purposes: (1) to protect an attorney's
thought processes and mental impressions against disclosure;
and (2) 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).
Work product protection may be claimed by the attorney or the
client (In re Special September 1978 Grand Jury
(II), 640 F.2d 49, 63 (7th Cir. 1980)) and the party
seeking the protection must show that the doctrine applies.
Sullivan v. Alcatel-Lucent USA, Inc., No. 12 C 7528,
2013 U.S. Dist. LEXIS 82407, at *28 (N.D. Ill. June 12,
The Gill Letter
argues that the Gill Letter is protected opinion work product
because it was prepared in anticipation of
litigation-“the prospect of a claim or complaint being
pursued against [Ms. Gill] by Plaintiff at the
ARDC”-and it contains Ms. Gill's mental impressions
and legal opinions. (Dkt. 155 at 4-5). Defendants do not
dispute that the Gill Letter was prepared “in
anticipation of litigation” and they do not object to
the application of the work product doctrine in a subsequent
proceeding. See Webster Bank, N.A. v. Pierce &
Assocs., P.C., No. 16 C 2522, 2018 U.S. Dist. LEXIS
18653, at *18 (N.D. Ill. Feb. 5, 2018)
(“attorney-client privilege and the work-product
doctrine may apply to Defendant's letter and/or some of
the other materials submitted to the ARDC.”);
Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006)
(“[work product] privilege endures after termination of
the proceedings for which the documents were created,
especially if the old and new matters are related.”).
Instead, Defendants contend that the Gill Letter is
“factual” and not protected by the work product
doctrine at all. (Dkt. 162 at 3).
ignore established case law that the work product protection
applies to both “fact” and “opinion”
work product. Further, while the Gill Letter contains factual
information, it also clearly expresses Ms. Gill's mental
impressions, conclusions and legal theories about
Walker's post-conviction claims. Because the letter
contains both fact and opinion work product, the only issue
is waiver. The Court concludes that the work product
protection was waived when the letter was produced to
Defendants in this litigation.
Federal Rule of Evidence 502(b)
undisputed that the Gill Letter was produced to Defendants in
this litigation without any claim of work product protection.
Such a disclosure would generally waive that protection.
See Woodard, No. 14 CV 1887, 2014 U.S. Dist. LEXIS
69512, at *26 (work-product protection waived by a disclosure
that is “inconsistent with the adversary system”
and “voluntary disclosure to an adversary almost
invariably constitutes ...