United States District Court, N.D. Illinois, Eastern Division
URBAN 8 FOX LAKE CORPORATION, URBAN 8 ZION CORPORATION, Plaintiffs,
NATIONWIDE AFFORDABLE HOUSING FUND 4, LLC, SCDC, LLC, WENTWOOD CAPITAL ADVISORS, LP, Defendants.
MEMORANDUM OPINION AND ORDER
Jeffrey Cole Magistrate Judge.
have made three recent submissions to the court - a letter,
two binders full of documents, and what is captioned
“Resubmission of Defendant's Privilege Log for
Motion for Protective Order (Contested).” [Dkt. #121,
124]. Over eight months ago, on March 8, 2019, defendants
asked the court to conduct an in camera review of
about five dozen documents. The defendants claimed these
documents were protected from discovery by the privilege.
[Dkt. #76, at 8-10]. They claimed to have attached a
“chart” to their motion that apparently was to
serve as a privilege log describing the documents and stating
why each was privileged. But, there was no chart attached to
the motion. That only came about a month later, when
defendants finally filed it, saying it had been inadvertently
omitted. [Dkt. # 85]. In any event, the purportedly
privileged documents deposited for in camera
inspection were contained in five large, three-ring binders
and occupied approximately 2, 275 pages! If basic competent
procedures were followed, the lawyers obviously had to look
at the mass of documents before a privilege could properly be
asserted. But that, apparently, is not what happened.
due to the unfortunate history of this case - detailed in the
Order of November 13th- the court did not analyze
the overly broad collection of documents wrongly claimed to
be privileged. Each hour needlessly spent on a dispute is
an hour squandered.“Litigation is costly not only for
the litigants but also for parties in other cases waiting in
the queue for judicial attention.” Chicago
Observer, Inc. v. City of Chicago, 929 F.2d 325, 329
(7th Cir.1991). This is a problem that the Seventh Circuit
has repeatedly adverted to. See, e.g., Otto v. Variable
Annuity Life Insurance. Co., 134 F.3d 841, 854 (7th
Cir.1998); Channell v. Citicorp Nat. Services, Inc.,
89 F.3d 379, 386 (7th Cir.1996); Szabo Food Service, Inc.
v. Canteen Corp., 823 F.2d 1073, 1077 (7th Cir.1987).
demands that a legitimate claim of privilege can only be made
after a document by document examination. In re Grand
Jury Proceedings, 220 F.3d 568 (7th Cir.
2000). Consequently, by making the very large submission that
the defendants initially made, they in effect were
representing that such an examination had been conducted.
Yet, now after eight months, defendants' counsel now
suddenly tells the court he has “no idea what was
delivered to [the court], nor do[es he] have any idea how
this [submission of thousands of documents [in five huge
binders] occurred.” (Marc A. Al Letter of November 10,
2019). Yet, counsel has now deposited a new set of documents
totaling 570 pages for in camera inspection, which
occupy just two three-ring binders. He asserts that he was
not making a frivolously sweeping claim of privilege as to
the 2, 275 pages of documents. Instead, counsel says he meant
to claim the privilege as to only two binders of
documents covering only about 570 pages. While claims of
inadvertence are not uncommon, they need not to be taken at
face value. Union Switch & Signal Co. v. Louisville
Frog, Switch & Signal Co., 73 F.2d 550, 552 (6th
Cir. 1934); Ah Quin v. Cty. of Kauai Dep't of
Transp., 733 F.3d 267, 271 (9th Cir. 2013). The
assertions made in the current motion is, I believe,
inherently incredible, and no court is bound to credit an
inherently incredible explanation. See Anderson v.
Bessemer City, 470 U.S. 564, 57584 L.Ed.2d 518
(1985)("the story itself may be so... implausible on its
face that a reasonable factfinder would not credit
it."). See also' Geighy Chemical Corp. v.
Allen, 224 F.2d 110, 114, n.5 (5th Cir. 1955);
Northern Trust Company v. Garman, 643 F.2d 1252,
1260 (7th Cir. 1980), cert. denied, 450
U.S. 910 (1981); Kearney & Trecker Corp. v. Giddings
& Lewis, Inc., 452 F.2d 579, 595 (7th Cir. 1971).
defense counsel apologizes for the claimed
“mistake” [Dkt. ##121, 124], counsel suggests
that this was somehow a result of some confusion on the
court's part regarding the difference between documents
filed publicly and those filed in camera, or
confusing exhibit numbers, or in the transfer of this motion
and those documents from one judicial officer to another on
two successive occasions. [Dkt. # 124, at 1-2]. In other
words, the fault lay with defense counsel's recently
filed “Motion for a Protective Order” [Dkt.
#124]. Counsel seeks to explain what had been filed back in
Exhibits 1, 2, and 65 were publicly filed, respectively as
Dockets 78-1, 78-2, and 78-3. The remaining exhibits were not
publicly filed, and exhibits 5 through 62 were submitted for
in camera review by Judge Durkin and transmitted to him in a
box, which box was subsequently transferred to Judge Rowland
and then to this Court's Chambers. Thus, the first
document in the box was the first document that the Court was
asked to review, which was Exhibit 5 to the Declaration of
Marc Al. Exhibit 5 consists of a 9-page lead document,
AMTX-Urban 00000272-00000280 (an email chain), and the first
attachment to that chain. Exhibits 6, 7, and 8 were further
attachments to that email chain, as indicated in the
Declaration of Marc Al (Docket 78) at paragraphs 14 through
17 and in the sixth column of the “chart” (Docket
85), and those exhibits should be reviewed in conjunction
with the lead document, AMTX-Urban 00000272-00000280.
Exhibits 9 and 10 were “stand-alone” documents,
without a “lead” document. Exhibit 11 contained
another lead document, to with an email (AMTX-Urban 0002321),
with its first attachment (AMTX-Urban 0002322-0002327).
Exhibit 12 (AMTX-Urban 0002328-0002371) was the second
attachment to the email and should be reviewed in conjunction
with the lead document, AMTX-Urban 0002321.
[Dkt. #124, at 1-2].
disabuse counsel of any notion they might have that there was
any confusion on the court's part over their submission,
what defendants actually deposited for in camera
review were, again, five large binders, each ranging from
three to four inches thick: Exhibits 1-7 to Declaration of
Marc A. Al, Exhibits 8-16 to Declaration of Marc A. Al,
Exhibits 17-62 to Declaration of Marc A. Al, Exhibit 63 to
Declaration of Marc A. Al, and Exhibits 64-65 to Declaration
of Marc A. Al. Clearly, that's a world of difference from
the two binders counsel have submitted now: 62 exhibits
instead of 65; 570 pages instead of 2275. Documents can be
mislaid, or misidentified, or misfiled, especially as complex
litigation unfortunately may necessarily entail massive
volumes of discovery. But, while even the best judges make
mistakes, see, e.g., Dietz v. Bouldin, ___U.S.___,
___, 136 S.Ct. 1885, 1896 (2016)(“All judges make
mistakes. (Even us.)”); In re City of
Milwaukee, 788 F.3d 717, 722 (7th Cir. 2015), no one is
going to confuse a stack of five binders over a foot and a
half high, and containing thousands of pages with a couple of
binders no more than six inches high containing some 500
the new, slimmed-down submission comes the required privilege
log, no longer referred to as a mere “chart” as
defense counsel had been doing previously. See
Fed.R.Civ.P. 26(b)(5). Sandra T.E. v. S. Berwyn Sch.
Dist. 100, 600 F.3d 612, 623 (7th Cir. 2010); Monco
v. Zoltek Corp., 317 F.Supp.3d 995, 1000 (N.D. Ill.
2018). The new privilege log has little in common with the
old “chart.” Right off the bat, in the original
“chart, ” there was no entry, and hence no claim
of privilege, for Exhibit 5, AMTX-Urban 00000272-280 [Dkt.
#85, Page4/22]. Now, there is a claim that this document is
not only privileged, but protected by the work product
doctrine. [Dkt. #124, at Page 4/34]. As defendants have been
withholding this document - redacting large portions of it,
more accurately - for months without any claim of privilege,
waiver is certainly an issue. See, e.g., Surgery Ctr. at
900 N. Michigan Ave., LLC v. Am. Physicians Assurance Corp.,
Inc., 317 F.R.D. 620, 631 (N.D. Ill.
2016)(“Arguably, they waived their claim of privilege
as to these unidentified documents then and there.”);
Rao v. Bd. of Trustees of the Univ. of Illinois,
2016 WL 6124436, at *7 (N.D. Ill. Oct. 20, 2016)(“A
timely and adequate privilege log is required by the federal
rules, and the failure to serve an adequate and timely
privilege log may result in a waiver of any protection from
discovery.”); Patrick v. City of Chicago, 111
F.Supp.3d 909 (N.D. Ill. 2015); Buonauro v. City of Berwyn,
2011 WL 3754820, at *8 (N.D. Ill. Aug. 25, 2011)(“A
litigant cannot withhold documents after it is served with
discovery requests based merely on its own decision that a
privilege exists, and the failure to provide a privilege log
can result in a waiver of the protection that would otherwise
from that, a large number of claims of privilege have been
withdrawn, leaving newly asserted claims of work product,
Other claims, work product and/or privilege, have simply been
withdrawn altogether. All this is by way of indicating to
defense counsel what the court will be working from, in case
other mistakes will be claimed to have been made, as changing
claims from attorney-client privilege to work product is not
ordinary, the two doctrines being readily distinguishable.
See, e.g., United States v. Nobles, 422 U.S. 225,
238 (1975); Appleton Papers, Inc. v. E.P.A, 702 F.3d
1018, 1024 (7th Cir. 2012). They are not fungible, and a
claim for one is not also a claim for the other. Now, in the
main, defendants are asserting work product protection to al
or nearly all of the withheld documents, and have abandoned
many what were previously claims of attorney-client privilege
as to those documents. The effect of this sudden volte
facie remains to be seen.
being said, plaintiffs may within 21 days, file a response
brief to defendants' newly framed claims of privilege
and/or work product set forth in the privilege log. [Dkt. #
124]. Within fifteen days thereafter, Defendants' reply
brief, if any, will be due.
This case would seem to prove
once again that excessive claims of privilege are
unfortunately commonplace in modern litigation, and that they
are often indiscriminately used “on documents that do
not truly qualify for protection.” Towne Place
Condo. Ass'n v. Philadelphia Indem. Ins. Co., 284
F.Supp.3d 889 (N.D. Ill. 2018). See also Motorola Sols.,
Inc. v. Hytera Communs Corp., No. 17 C 1973, 2018 WL
1804350, at *1 (N.D. Ill. Apr. 17, 2018); Dietz &
Watson, Inc. v. Liberty Mut. Ins. Co., 2015 WL 2069280,
at *6 (E.D. Pa. 2015); Falin v. Condo. Ass'n of La
Mer Estates, ...