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Walker v. White

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

May 14, 2018

MICHAEL WHITE, et al., Defendants.



         Before the Court is Plaintiff's Motion for Protective Order Regarding Inadvertently Produced Opinion Work Product. For the reasons set forth below, Plaintiff's Motion [155] is DENIED.


         Plaintiff (“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.

         In his 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.[1] 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.


         A. The Work Product Doctrine

         The 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 be waived).

         The 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, 2013)).[2]

         B. The Gill Letter

         Walker 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).

         Defendants 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.[3]

         C. Federal Rule of Evidence 502(b)

         It is 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 ...

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