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Smith-Brown v. Ulta Beauty, Inc.

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

June 27, 2019

KIMBERLY LAURA SMITH-BROWN, et al., individually and on behalf of all others similarly situated, Plaintiffs,



         Plaintiffs ask the Court to compel defendants to produce twenty-seven documents and a response to interrogatory 13 concerning defendants' internal investigation of the allegations in the complaint. Defendants contend that the information plaintiff seeks is privileged. For the reasons set forth below, the Court grants in part and denies in part plaintiff's motion to compel [177].



         Defendants contend that the documents at issue-nos. 53, 142, 143, 156, 157, 218, 235, 238, 254, 295, 319, 353, 355, 374, 390, 406, 412, 481, 511, 532, 539, 581, 607, 701, 702, 703, and 703(b) on their privilege log-are subject to the attorney-client and/or work product privileges. Plaintiffs argue that: (1) the log is not detailed enough to assess the privilege claims; (2) even if it is sufficiently detailed, defendants have not shown that the requested documents are subject to either privilege; and (3) defendants have waived any privilege that might otherwise apply.


         Plaintiffs argue that the document descriptions are too vague because they contain “boilerplate buzzwords” such as “in anticipation of litigation” or “reflects legal advice.” (Pls.' Br., ECF 177 at 5.) If the descriptions were limited to those words, that would be problematic. See Nucap Indus. Inc. v. Robert Bosch LLC, No. 15 CV 2207, 2017 WL 3624084, at *1 (N.D. Ill. Aug. 23, 2017) (documents described only as “[c]ommunication reflecting legal advice regarding anticipated litigation with Bosch” found insufficient). But here, in addition to the “buzzwords, ” the log contains a description of the documents. (See, e.g., Pls.' Br., Ex. A, Privilege Log, ECF 177-1, Doc. 142 (described as “Communication reflecting work done as part of investigation performed at the request and direction of company counsel, in anticipation of litigation, and for the purpose of assisting with the provision of legal advice regarding social media allegations, such as compiling internal company communications to and from stores sent at the direction of company counsel, and gathering social media, media, customer, and/or former employee activity regarding social media allegations, which provided information regarding the company's investigation and company counsel's legal advice regarding company's response to social media allegations.”).) Thus, defendants' use of “buzzwords” does not make the descriptions too generic.

         Plaintiffs' second argument is that defendants' inclusion of “such as” in the descriptions renders them vague. The Court agrees. By using qualifiers like “such as” and “and/or” in the privilege log descriptions, defendants state what the subject of the documents may be, not what the subject is. Defendants are ordered to amend their log to remedy this problem within seven days of the date of this Memorandum Opinion and Order.

         Work Product

         Defendants contend that all twenty-seven of the documents are protected work product because they were prepared in anticipation of litigation. See Fed. R. Civ. P. 26(b)(3)(A) (“[A] party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative” unless “they are otherwise discoverable under Rule 26(b)(1)” and “the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”); (Defs.' Resp., ECF 191 at 11-17; id., Ex. 1, Caro Decl., ECF 191-1 ¶¶ 8-10). According to the Seventh Circuit, a dual purpose document, one prepared in anticipation of litigation and for another purpose as well, is work product only if “‘the primary motivating purpose behind [its] creation” is “to aid in possible future litigation.'” Binks Mfg. Co. v. Nat'l Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir. 1983) (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C.1982)). “Materials created in the ordinary course of business which may have the incidental effect of being helpful in litigation are not privileged under the work product doctrine.” Lynk Labs, Inc. v. Juno Lighting LLC, No. 15 C 4833, 2016 WL 6135711, at *2 (Oct. 21, 2016) (quotation omitted); Long v. Anderson Univ., 204 F.R.D. 129, 136 (S.D. Ind. 2001) (“[D]ocuments created as a result of the discovery opponent's ordinary course of business that would have been created irrespective of litigation are not under the protection of the work product doctrine.”) (quotation omitted).

         Defendants contend that “the predominant purpose [for creating the contested documents] was because of anticipated litigation.” (Defs.' Resp. at 7) (emphasis omitted). In support of that contention, defendants submit a declaration from their General Counsel, Jodi Caro. Ms. Caro states that she “decided Legal Services need to lead the investigation into the social media allegations in order to: gather information for Legal Services' use and benefit in providing informed legal advice to the company, ensure that the investigation proceeded in a way that was coordinated with the company's litigation strategy, and assess the company's position in anticipated litigation.” (Defs.' Resp., Ex. 1, Caro Decl., ECF 191-1 ¶ 8.) She also says that “[a] Legal Services-led investigation is not the company's typical response to complaints or issues raised by customers or former employees. Such an investigation only occurs when Legal Services concludes that there is a potential legal issue that poses risk to the company, including the threat of, or likelihood of, litigation, and requires legal advice.” (Id. ¶ 10) (emphasis in original). After reviewing the contested documents in conjunction with Ms. Caro's declaration, the Court finds that the documents are work product.

         Even if that is true, plaintiffs argue that the exception to the work product doctrine applies because they are seeking “the underlying facts learned by Ulta in that investigation” and “have no other means to obtain this information other than through Ulta's own employees and the investigation materials.” (Pls.' Br., ECF 177 at 18.) But work product does not shield facts, see, Lynk Labs., 2016 WL 6137511, at *1 (“[T]the work product doctrine does not protect bare facts.”), so plaintiffs can obtain through depositions the facts Ulta uncovered in its investigation. Because plaintiffs can obtain the information they seek without production of defendants' work product, the exception to the doctrine does not apply.

         Attorney Client Privilege

         Defendants claim that nineteen of the twenty-seven documents (53, 142, 143, 157, 218, 235, 238, 254, 295, 319, 353, 374, 390, 532, 539, 581, 607, 701, and 703(b)) are also protected by the attorney client privilege. About this privilege, the Illinois Supreme Court has said: “[W]here legal advice of any kind is sought from a professional legal advisor in his capacity as such, the communications relating to that purpose, made in confidence by the client, are protected from disclosure by himself or the legal adviser, except the protection be waived.” Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., 727 N.E.2d 240, 243 (2000); see Fed. R. Evid. 501 (“[I]n a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”).

         Plaintiffs argue that the privilege does not apply because defendants “undertook the review primarily for marketing and public relations, not for the purpose of providing legal advice.” (Pls.' Br., ECF 177 at 7); see Nucap, 2017 WL 3624084, at *2 (“[C]onfidential communications with a lawyer about business or other non-legal matters are not privileged.”); Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 152 F.R.D. 132, 137 (N.D. Ill. 1993) (“[T]he privilege will not apply where the legal advice is incidental to business advice.”). If, however, the documents contain “legal advice relating to business matters, ” the privilege applies. Marusiak v. Adjustable Clamp Co., No. 01 C 6181, 2003 WL 21321311, at *2 (N.D. Ill. June 5, 2003).

         Plaintiffs say that, as with work product, Seventh Circuit law requires defendants to show that the primary purpose of the contested documents was to render or solicit legal advice for the attorney client privilege to apply. (Pls.' Reply, ECF 196 at 1-3.) However, they do ...

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