United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Harjani United States Magistrate Judge
Patrick Cage, has sued the Board of Trustees of the Chicago
State University over his termination as General Counsel of
the University. In the instant matter, Plaintiff has filed a
motion to compel Akerman LLP, a law firm, to comply with a
subpoena for documents where Akerman has asserted
attorney-client privilege over the documents [175, 176].
Defendants have filed a response brief objecting to the
motion  and Akerman has adopted those arguments .
The question in this dispute is whether the
“at-issue” waiver of the attorney-client
privilege doctrine applies to compel production of the
documents from Akerman. The Court finds that it does not, and
therefore denies Plaintiff's motion to compel.
seeks to compel the production of communications between
legal counsel (Akerman) and its client (the Board of Trustees
and Chicago State University) on the basis that Defendants
have pled affirmative defenses of good faith and qualified
immunity, and therefore have waived the attorney-client
attorney-client privilege is “one of the oldest
recognized privileges for confidential communications,
” United States v. BDO Seidman, 337 F.3d 802,
810 (7th Cir. 2003), and exists primarily to
“‘encourage full and frank communication between
attorneys and their clients.'” United States v.
Zolin, 491 U.S. 554, 562 (1989) (quoting Upjohn Co.
v. United States, 449 U.S. 383, 389 (1981)). However,
the attorney-client privilege can be waived, either
explicitly or by implication. Lorenz v. Valley Forge Ins.
Co., 815 F.2d 1095, 1098 (7th Cir. 1987); see also
United States v. Nobles, 422 U.S. 225, 239 (1975);
United States v. Brock, 724 F.3d 817, 821 (7th Cir.
2013). Express waiver occurs where “information that
would otherwise be privileged is not kept
confidential.” Patrick v. City of Chicago, 154
F.Supp.3d 705, 711 (N.D. Ill. 2015). Implied waiver, the
relevant inquiry in this case, can occur when a client
asserts claims or defenses that put his or her attorney's
advice “at issue” in the litigation.
Beneficial Franchise Co., Inc. v. Bank One, N.A.,
205 F.R.D. 212, 216 (N.D. Ill. 2001).
“at issue” waiver doctrine is limited and
“should not be used to eviscerate the attorney-client
privilege.” Silverman v. Motorola, Inc., 07 CV
4507, 2010 WL 2697599 at *4 (N.D. Ill. July 27, 2010)
(citing LG Electronics v. Whirlpool Corp., 2009 WL
3294802 (N.D. Ill. 2009)). Merely asserting a claim or
defense to which attorney-client communications are relevant,
without more, does not constitute a waiver of attorney-client
privilege. The privileged party must affirmatively put at
issue the specific communication to which the privilege
attaches before the privilege will be deemed waived.
United States v. Capital Tax Corp., 04 CV 4138, 2011
WL 1399258 (N.D. Ill. 2011); Beneficial Franchise Co.,
Inc. v. Bank One, N.A., 205 F.R.D. 212, 216 (N.D. Ill.
Seventh Circuit has not addressed directly the federal common
law standard for when a party waives attorney-client
privilege by putting privileged information “at
issue” in a case. However, in Garcia v. Zenith
Electronics Corp., 58 F.3d 1171, 1175 n.1 (7th Cir.
1995), the Seventh Circuit cited the standard adopted by the
Third Circuit in Rhone-Poulenc. As a result,
district courts within this circuit have applied the
Rhone-Poulenc standard. See, e.g., DR
Distributors, LLC v. 21 Century Smoking, Inc., 2015 WL
5123652 (N.D. Ill. 2015); Novak v. State Parkway Condo.
Ass'n, 2017 WL 1086767 (N.D. Ill. 2017));
Capital Tax Corp., 2011 WL 1399258;
Silverman, 2010 WL 2697599; Bosch v.
Ball-Kell, 2007 WL 601721 (C.D. Ill. 2007);
Schofield v. U.S. Steel Corp., 2005 WL 3159165 (N.D.
Ind. 2005); Chamberlain Group v. Interlogix, Inc.,
2002 WL 467153 (N.D. Ill. 2002); Beneficial Franchise
Co., 205 F.R.D. at 216.
at issue waiver occurs when a party “affirmatively
put[s] at issue the specific communication, document, or
information to which the privilege attaches.” Dexia
Credit Local v. Rogan, 231 F.R.D. 268, 275 (N.D. Ill.
2004). Put another way, attorney-client privilege is
generally waived when a client asserts claims or defenses
that put his attorney's advice at issue in the
litigation. Garcia, 58 F.3d at 1175, n.1.
Plaintiff has not established that Defendants have placed the
attorney-client communications at issue. Instead, Defendants
have explicitly stated it is not relying upon the advice of
counsel in proving any of its affirmative defenses. Nor have
Defendants relied upon the advice of counsel or any
communications with counsel at any deposition or in response
to any discovery request. See e.g. Capital Tax
Corp., 2011 WL 1399258, at *2 (finding that at issue
waiver did not occur where a plaintiff intended to meet its
burden of proof on a claim without using privileged
information). In turn, Plaintiff has not provided any
specific instance in which a Defendant has referenced or
identified communications with counsel as being part of the
assertion of any affirmative defense. Moreover, Defendants
can seek to establish through non-privileged communications
and actions these affirmative defenses; nothing about these
defenses mandates that advice of counsel be used to prove
two things are clear from Plaintiff's motion and reply
brief. First, it is Plaintiff who is placing the
communications at issue because he believes that there must
be relevant information with respect to his termination from
Chicago State University, as counsel appears to have been
consulted during the process of termination, at the very
least, with respect to the drafting of a severance agreement,
as indicated by Defendants' privilege log. However,
Defendants have not stated that its good faith or qualified
immunity defense is based in any way on communications with
counsel. Indeed, Defendants essentially disavow any reliance
upon advice of counsel for these defenses in its response
brief.  Rather, it is Plaintiff who has injected the
issue of advice of counsel in the case, and then sought to
obtain that information. That is not a basis for waiver - the
privilege holder must be the one to inject the issue.
Motorola v. Hytera, No. 17 CV 1973, 2018 WL 1804350
at *6 (N.D. Ill. April 17, 2018).
Plaintiff argues that fundamental fairness and access to the
truth are considerations that the Court must consider. While
some courts have discussed these issues in deciding whether
an implied waiver occurred, the Court is aware of no case
that has solely relied upon a fairness analysis to find an
implied waiver of privilege. Indeed, that holding would
effectively eradicate the attorney-client privilege. Relevant
evidence is almost always found in attorney-client
communications - that is the point of the privilege. It
allows the client the protection to discuss a legal issue,
often the subject of an eventual lawsuit, in confidence. The
fact that the Board consulted with lawyers in the course of
terminating a senior level employee at the University is not
surprising or unusual. That alone does not waive the
privilege on pure relevancy and fairness grounds simply by
the mere assertion that the Board generally acted in good
faith and that its officers are protected under the qualified
immunity doctrine while acting under color of state law.
Plaintiff claims that the law in the Seventh Circuit is that
the simple assertion of a good faith defense or a qualified
immunity defense is sufficient to waive the attorney-client
privilege. That is not the law in this Circuit. A mere
assertion of an affirmative defense, alone, does not waive
the privilege. As discussed above, the attorney's advice
must be placed at issue in the context of asserting the
affirmative defense. See e.g. Beneficial, 205 F.R.D.
at 216; see also Johnson v. Rauland-Borg Corp., 961
F.Supp. 208, 211 (N.D.Ill.1997) (finding privilege waived, in
Title VII case, where employer “intends to argue that
it is not liable because it acted reasonably by employing the
outside attorney to investigate the matter.”);
Panter, 80 F.R.D. 718, 721 (N.D. Ill. 1978) (finding
that the at-issue waiver applied where defendants asserted as
an essential element of their defense reliance upon advice of
support of its position, Plaintiff advances Lorenz v.
Valley Forge Insurance Company, 815 F.2d 1095 (1987).
However, in Lorenz, the Seventh Circuit found no at
issue waiver of the privilege because the defendant, the
holder of the privilege, did not inject a new factual or
legal issue into the case. Even there, where defendant's
former attorney had testified, the Court determined that the
attorney's testimony was simply a form of proof of a
particular fact, but did not inject a new legal issue into
the case that warranted waiver. Plaintiff further urges this
Court to rely upon Hearn v. Rhay, 68 F.R.D. 574
(E.D. Wash. 1975), which was cited by the Seventh Circuit in
Lorenz, but without any discussion of its analysis
or holding. Some courts have interpreted Hearn to be
consistent with current Seventh Circuit law that the holder
of the privilege must advance a particular communication with
counsel in support of a claim or defense to result in an
at-issue waiver. See Motorola, 2018 WL 1804350, at
*5. This is likely because despite the broad language in
Hearn, the state officials who asserted the
qualified immunity defense had implicitly placed at issue the
advice they received from the Attorney General's office.
Specifically, Plaintiff presented evidence to the court that
defendant had received prior notice from the Attorney General
that his conduct violated Plaintiff's rights, which was
probative in evaluating defendant's malice for his
post-notice conduct, and could negate the qualified immunity
defense raised by Defendant. Hearn, 68 F.RD. at
582-583. Other courts have determined that Hearn
sought to impose a rule that any time a claim or affirmative
defense was asserted, and where the relevant information in
support of the claim was contained in the privileged
documents, the privilege was waived -- those courts have
rejected reliance on Hearn. See e.g. In re the County of
Erie,546 F.3d 222, 227 (2d Cir. 2008) (collecting
cases); Rhone-Poulenc, 32 F.3d at 863; Trustees ...