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Smith v. Board of Educaition of City of Chicago

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

June 19, 2019


          District Judge Robert M. Dow, Jr.


          Jeffrey Cummings United States Magistrate Judge

         Plaintiff Keesha Smith has brought a motion to compel defendant Board of Education of the City of Chicago to produce 18 documents that the Board has withheld or redact based upon the attorney-client and/or work product privileges. These documents are e-mails dated from March 3, 2017 to April 6, 2017 that were exchanged between Mary Ernesti - - an attorney who holds a position within the Board's Office of Employee Engagement - - and other members of the Board's management. Plaintiff asserts that the documents are not privileged because they concern business-related advice that Ms. Ernesti was providing in her capacity as a human resources professional (and not as an attorney representing her client). Plaintiff further asserts that work product privilege does not protect the documents over which the Board has asserted the privilege because they were not prepared in anticipation of litigation.

         As the party claiming that its documents are privileged, the Board has the burden of proving that at least one of the privileges is applicable to each document. See, e.g., BankDirect Capital Finance, LLC v. Capital Premium Finance, Inc., 326 F.R.D. 176, 180 (N.D.Ill. 2018). The Board asserts in its amended first privilege log (Dkt. 72-1) that: (1) all of the e-mails are protected by the attorney-client because they were created for the proposes of receiving and providing legal advice relating to the discipline of plaintiff; and (2) a number of the e-mails generated between March 3, 2017 and March 24, 2017 are also protected by the work product privilege because they were created in anticipation of litigation. Pursuant to this Court's May 28, 2019 Order, the Board provided the documents in question to the Court for an in camera review.

         I. The Board Has Largely Failed To Meet Its Burden Of Establishing That The E-Mails Are Protected By The Attorney-Client Privilege

         The attorney-client privilege applies:

(1) where legal advice of any kind is sought; (2) from a professional legal advisor in h[er] capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) at his instance permanently protected, (7) from disclosure by himself or by the legal advisor, (8) except the protection can be waived.

United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997) (internal quotation marks omitted). “The claim of privilege cannot be a blanket claim; [rather, ] it 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) (internal quotation marks omitted). Furthermore, ‘because the privilege is in derogation of the search for the truth, it is construed narrowly.” Evans, 113 F.3d at 1461; White, 950 F.2d at 430.

         Although “[t]he attorney-client privilege has long been understood to protect corporate clients and counsel, ” RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 216 (N.D.Ill. 2013), “[t]here is no presumption that a company's communications with counsel are privileged.” EEOC v. BDO USA, L.L.P., 876 F.3d 690, 696 (5th Cir. 2017). Indeed, “[i]t goes without saying that documents do not become cloaked with the lawyer-client privilege merely by the fact of their being passed from client to lawyer.” BankDirect, 326 F.R.D. at 180 (internal quotation marks omitted); BDO USA, 876 F.3d at 696. Instead, the “privilege is limited to situation in which the attorney is acting as a legal advisor - business and financial advice are not protected.” RBS Citizens, 291 F.R.D. at 216 (citing to Burdon-Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003)); BDO USA, 876 F.3d at 696. Consequently, “communications by a corporation with its attorney, who at the time is acting solely in h[er] capacity as a business advisor, [are not] privileged.” BDO USA, 876 F.3d at 696 (internal quotation marks omitted).

         This Court acknowledges that the “expanded role of legal counsel within corporations has blurred the lines between business and legal advice” and that it is not always easy to discern how advice from a person who happens to be an attorney should be characterized. RBS Citizens, 291 F.R.D. at 217 (internal quotation marks omitted); BankDirect, 326 F.R.D. at 181. Nonetheless, courts presume that where in-house counsel is involved, “the attorney's input is more likely business rather than legal in nature, ” Lindley v. Life Investors Insurance Co. of America, 267 F.R.D. 382, 389 (N.D.Okla. 2010), aff'd in part as modified, No. 08-CV-0379-CVE-PJC, 2010 WL 1741407 (N.D.Okla. Apr. 28, 2010) (citing cases), and “communications by a corporation with its attorney, who at the time is acting solely in h[er] capacity as a business advisor, [are] not privileged.” Neuder v. Battelle Pacific Northwest National Laboratory, 194 F.R.D. 289, 292 (D.D.C. 2000) (internal quotation marks omitted); BDO USA, 876 F.3d at 696 (same). Consequently, “[w]hen an attorney serves in a non-legal capacity . . . h[er] advice is privileged only upon a clear showing that [s]he gave it in a professional legal capacity.” Marten v. Yellow Freight System, Inc., No. CIV. A. 96-2013-GTV, 1998 WL 13244 at *9 (D.Kan. Jan. 6, 1998); Lindley, 267 F.R.D. at 390; Neuder, 194 F.R.D. at 295.

         In this case, the Board asserts that the e-mails are protected by the attorney client privilege because they involve communications to and from attorney Mary Ernesti regarding plaintiff's discipline and termination. Although Ms. Ernesti reports to the Board's General Counsel, she is employed as the Director of the Board's Office of Employee Engagement. The mission of the Board's Office of Employee Engagement “is to ensure effective administration of employee grievances, collective-bargaining provisions, Board policies and rules, and employee discipline to facilitate compliance with statutory and contractual requirements. [The Office's] main duties include advising principals and other supervisors on employee discipline issues, presiding over discipline hearings, and investigating and adjusting grievances filed by labor unions.” Dkt. #66, at 13.

         The Court has conducted an in camera review of the documents in question and it finds that the communications contained therein (with the exception noted below in footnote 2) concern the process by which plaintiff was placed on a performance improvement plan (“PIP”) and ultimately terminated for what the Board considered to be unacceptable conduct. The Court finds that Ms. Ernesti's communications on these e-mails constituted non-privileged business advice for the following reasons. First, decisions concerning the discipline and termination of employees are business decisions and “any legal advice sought or received is incidental to considerations of what is most prudent for the successful operation of the business.” Neuder, 194 F.R.D. at 293-94 (citing to Marten, 1998 WL 13244 at *8); Sigler v. Ricoh Americas Corp., No. SACV0801139AGANX, 2009 WL 10698890 at *3 (C.D.Cal. July 9, 2009) (“The decision to terminate an employee constitutes a business, not legal, decision”); see also BDO USA, 876 F.3d at 693-94, 696-97 (reversing decision that all communications between a corporation's HR manager and its counsel concerning, among other things, the manager's investigations of discrimination complaints and how to carry out her HR duties were per se protected by the attorney-client privilege).

         Second, notwithstanding the Board's characterizations in its amended privilege log, [1] the input that Ms. Ernesti was requested to provide or provided in these e-mail chains - - which concerned, for example, the scheduling of meetings (BOE 361) and the contents of plaintiff's PIP and discipline (BOE 367, 368) - - does not fit within the definition of privileged legal advice. See, e.g., Lindley, 267 F.R.D. at 390 (“Privileged material has been defined as (1) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding”) (internal quotation marks omitted); In re Grand Jury, 475 F.3d 1299, 1304 (D.C.Cir. 2007) (same); Board of Education of Evanston Township v. Admiral Heating and Ventilating, Inc., 104 F.R.D. 23, 34 (N.D.Ill. 1984) (same).[2]

         Furthermore, the cases cited by the Board are factually distinguishable. In Kodish v. Oakbrook Terrace Fire Protection District,235 F.R.D. 447 (N.D.Ill. 2006), for example, an attorney attended a closed session meeting of defendants' board where the decision to terminate the plaintiff was discussed. The court held that “the mere attendance of an attorney at [the] meeting d[id] not render everything said or done at the meeting privileged.” Id., at 453. Indeed, the discussions regarding plaintiff's work history, the reasons for defendants' decision to terminate him, and defendants' expectations from an employee were not privileged and the court found that only the “conversations among the board members and their attorney about potential litigation risk and legal strategy” were privileged. Id., at 453-54. The e-mail communications in this case are analogous to the non-privileged information in Kodish and the e-mails (with the one noted exception) contain no discussion about “potential litigation risk” or “legal strategy.” Similarly, in Marusiak v. Adjustable Clamp Co., No. 01 C 6181, 2003 WL 2321311 (N.D.Ill. June 5, 2003), the court held that an attorney's legal advice based on his review and study of a legal document in response to defendant's request for that legal advice was protected by the attorney-client privilege. Id., at *2; see also Stafford Trading, Inc. v. Lovely, No. 05 C 4868, 2007 WL 611252 at *7 (N.D.Ill. Feb. ...

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