Schlicksup v. Caterpillar, Inc. et al

Filing 114

OPINION by U.S. Magistate Judge Byron Cudmore: Motion to Quash Subpoenas 68 ALLOWED in part and DENIED in part as to Ernst & Young LLP. See written order. Clerk is directed to keep Motion 68 pending as it relates to PricewaterhouseCoopers LLP, which will be addressed in a separate opinion. (LB, ilcd)

E-FILED

Friday, 19 August, 2011 11:24:38 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, PEORIA DIVISION
Daniel J. Schlicksup,
Plaintiff,
v.
Caterpillar, Inc., et al.,
Defendants.

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No. 09-CV-1208

ORDER
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
On May 24, 2011, this Court entered an order deferring a ruling on
Defendant Caterpillar, Inc.’s motions to quash subpoenas directed to
Howrey, LLP, Ernst and Young, LLP, and PricewaterhouseCoopers, LLP.
Caterpillar subsequently filed privilege logs and the documents it seeks to
withhold for an in camera review. On July 13, 2011, this Court ruled on
Caterpillar’s motion to quash the subpoena to Howrey, LLP.
Now before the Court are Caterpillar’s privilege log and documents
relating to the motion to quash the subpoena to Ernst and Young, LLP
(“E&Y”). For the reasons below, the motion will be granted in part and
denied in part. The Court will rule on the motion to quash the
PricewaterhouseCoopers’ documents in a separate order.
Page 1 of 20

Background
The Court assumes familiarity with its May 24, 2011 order. As
Plaintiff’s claims relate to the subpoena to E&Y, Plaintiff alleges that
Caterpillar paid E&Y large sums without required supporting
documentation. Plaintiff also alleges that E&Y provided services in relation
to Caterpillar’s “Luxembourg/Bermuda Tax Structure” (also known as the
“Financing Center Transaction”), which Plaintiff maintains was part of an
unlawful scheme to avoid over $2 billion in federal income tax.
Plaintiff’s subpoena to E&Y seeks:
• invoices and billing documents sent to Caterpillar in 2005 and 2006
• “Any and all documents written to provide supporting opinions for
the Caterpillar Inc. Luxembourg/Bermuda tax structures.”
•Correspondence and communications with Defendant Beran
(Caterpillar’s Tax Director and Assistant Treasurer) during 2005 and 2006

(d/e 69-1, p. 2).
On May 24, 2011, the Court directed Caterpillar to provide:
a) a separate, detailed privilege log setting forth the documents
withheld or redacted . . . ; b) the documents identified on each
privilege log for the court’s in camera inspection; and, (c) any
engagement letter between Caterpillar, Inc., and . . . E&Y . . . .

Page 2 of 20

(d/e 93, p. 20). Caterpillar has complied with that directive and this Court
has conducted an in camera review of each E&Y document submitted.
A general description of the financing center transaction provides
helpful context. Defendant Beran, Caterpillar’s Tax Director and Assistant
Treasurer, avers that, “[b]ecause of the accelerating growth of CAT’s
international operations, [he] recognized that it would be necessary to put
in place a financing center (“Financing Center Transaction”) that would
facilitate the ability to efficiently finance this future growth throughout the
world.” (Beran Aff. ¶ 15, d/e 69-2).” He avers that time was of the essence
in order to maximize tax savings under a “‘one time’ repatriation opportunity
granted by Congress in the enactment of Internal Revenue Code Section
965.” Id.
Based on the Court’s review of the documents, in broad terms the
stated purpose of the financing center transaction was to efficiently finance
foreign affiliates and foreign acquisitions and to achieve tax savings.
Accomplishing the transaction required a series of many separate
transactions in several different countries, which in turn required extensive
and complex planning. The Court will not go into further detail about this
complicated transaction because it does not wish to divulge potential

Page 3 of 20

confidential business information. Plaintiff maintains that the real purpose
of the transaction was to illegally avoid U.S. taxes, but that dispute is not
material to the motion to quash.
Applicable Law
Caterpillar’s privilege log asserts that the documents withheld are
protected by the attorney-client privilege, the work-product doctrine, and/or
the “tax advisor client communication” privilege. Caterpillar did not assert a
“tax advisor” privilege in its motion to quash and has not briefed the
contours of this privilege.1 Accordingly, the Court addresses only the
attorney-client privilege and work-product doctrine.
The attorney-client privilege protects communications made in
confidence by a client and a client’s employees to an attorney, acting as an
attorney, for the purpose of obtaining legal advice. Sandra T.E. v. South
Berwyn School Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). Statements
from the attorney to the client are also protected “‘where those
communications rest on confidential information obtained from the client, or
where those communications would reveal the substance of a confidential
communication by the client.’” Miyano Machinery USA, Inc. v. MiyanoHitec
1

There is a statutory tax advisor privilege, but that applies in civil tax matters
before the IRS or brought by the U.S. 26 U.S.C. Section 7525.
Page 4 of 20

Machinery, Inc., 257 F.R.D. 456, 460 (N.D. Ill. 2008)(quoted cite omitted).
The party asserting the privilege has the burden of demonstrating that it
applies. Valero Energy Corp. v. U.S., 569 F.3d 626, 630 (7th Cir. 2009).
The attorney-client privilege “is in derogation of the search for the truth and
therefore, must be strictly confined.” In re Grand Jury Proceedings, 220
F.3d 568, 571 (7th Cir. 2000). The analysis is “highly fact specific,”
requiring a “document-by-document” review and a consideration of the
“‘totality of the circumstances.’” Id. at 571, 572 (quoted cite omitted).
Confidential communications by non-lawyers for the purpose of
assisting the lawyers to provide legal advice are also protected by the
attorney-client privilege. See U.S. v. Kovel, 296 F.2d 918, 922 (2d Cir.
1961)(accountant’s assistance was protected by the attorney-client
privilege where it enabled “effective consultation between the client and the
lawyer”). “‘[W]hat is vital to the privilege is that the communication be
made in confidence for the purpose of obtaining legal advice from the
lawyer. If what is sought is not legal advice but only accounting service ...
or if the advice sought is the accountant's rather than the lawyer's, no
privilege exists.’ ” In re Grand Jury Proceedings, 220 F.3d at 571, quoting
U.S. v. Brown, 478 F.2d 1038, 1040 (7th Cir.1973), quoting U.S. v. Kovel,

Page 5 of 20

296 F.2d 918, 922 (2d Cir.1961))(emphasis in Kovel). Thus, the attorneyclient privilege applies if a consultant’s communications were “‘necessary,
or at least highly useful, for the effective consultation between the client
and the lawyer.’” Heriot v. Byrne, 257 F.R.D. 645, 667 (N.D. Ill.
2009)(referring to accountant’s services), quoting Kovel, 296 F.2d at 922;
see also Lawrence E. Jaffe Pension Plan v. Household Intern., Inc., 244
F.R.D. 412, (N.D. Ill. 2006)(“‘the complexities of modern existence prevent
attorneys from effectively handling clients’ affairs without the help of others,
[and] the attorney-client privilege must include all persons who act as the
attorney’s agents.’”)(quoted cited omitted).
The work-product doctrine is separate from the attorney-client
privilege, protecting “documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its
representative . . . .” Fed. R. Civ. P. 26(b)(3)(A). “The work-product
doctrine protects documents prepared by attorneys in anticipation of
litigation for the purpose of analyzing and preparing a client's case.”
Sandra T.E., 600 F.3d at 618. “[W]e look to whether in light of the factual
context ‘the document can fairly be said to have been prepared or obtained
because of the prospect of litigation.’” Logan v. Commercial Union

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Insurance Co., 96 F.3d 971, 976-77 (7th Cir. 1996),quoting Binks v. Mfg.
Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir.
1983)(emphasis in Binks, quoting 8 Wright & Miller, Fed. Practice and
Procedure § 2024). Documents prepared in the ordinary course of
business addressing matters which present a remote prospect of litigation
are not work-product. In contrast, documents prepared “‘because of the
prospect of litigation’” or prepared because “‘some articulable claim, likely
to lead to litigation’ . . . ha[s] arisen” are work-product. Binks, 709 F.2d at
1120 (emphasis in Binks)(internal quoted cites omitted). Fed. R. Civ. P.
26(b)(3)(A) also extends work-product protection to materials prepared “by
or for another party.” Thus, “[t]he person preparing the materials may be
any representative of the client, regardless of whether the representative is
acting for the lawyer.” Grochocinski v. Mayer Brown Row & Maw LLP, 251
F.R.D. 316, 321 (N.D. Ill. 2008), citing Caremark, Inc. v. Affiliated Computer
Services, Inc., 195 F.R.D. 610, 615 (N.D. Ill. 2000)(“[W]hether a document
is protected depends on the motivation behind its preparation, rather than
on the person who prepares it.”).

Page 7 of 20

Analysis
I.

The work-product doctrine does not apply because the
documents were not prepared or obtained because of the
prospect of litigation.
Caterpillar asserts that it hired the law firm McDermott, Will & Emery

(“MWE”) to “provide a legal analysis of the federal tax consequences,
advise CAT as to the potential litigation risks . . ., and defend the
transaction in IRS administrative proceedings and litigation.” (Beran Aff.
¶ 18, d/e 69-2). Beran “was of the view that the Financing Center
Transaction, . . ., would be closely scrutinized by the IRS and be
challenged during IRS audits, and result in litigation, albeit litigation to
which CAT would ultimately prevail.” (Beran Aff. ¶ 19, d/e 69-2). Beran
avers that he expected litigation because the IRS examines all of
Caterpillar’s returns pursuant to the Coordinated Examination Program and
the transaction (which significantly reduced tax liability) would be disclosed
on the return. He avers that “related-party transactions had been the
subject of considerable litigation between the IRS and other large corporate
taxpayers like CAT.” (Beran Aff. ¶ 9, d/e 69-2).
Lowell Yoder, an MWE partner and head of its international tax
group, offers similar averments. He avers that McDermott has been

Page 8 of 20

outside tax counsel to Caterpillar for over 50 years and frequently provides
legal advice to Caterpillar’s tax department, as well as defending Caterpillar
in tax disputes. (Yoder Aff. ¶ 5, d/e 69-3). Yoder further avers that:
. . . CAT requested that McDermott assist CAT and its
subsidiaries in preparing for anticipated litigation with the IRS
arising from the tax issues associated with the Financing
Center Transaction. . . .
*
*
*
At all relevant times during McDermott’s work on the Financing
Center Transaction, it was McDermott’s belief that the this [sic]
transaction would be closely scrutinized by the IRS, even
though it was lawful. . . . McDermott knew that the IRS would
be aware of the transaction, since CAT intended to (and did)
disclose the Financing Center Transaction in CAT’s federal
income tax reporting. In addition to the financing efficiencies
which would result, McDermott was aware that putting in place
a financing center could also result in substantial federal tax
savings.
*

*

*

. . . based on the assumption regarding litigation . . .
McDermott retained tax advisors from E&Y as well [as] some
assistance from PwC to assist McDermott in (1) conducting its
legal analysis of the federal tax consequences . . . , (2)
determining litigation risks, and (3) assisting in the defense.

(Yoder Aff. ¶¶ 17, 19, 21, d/e 69-3). Both Yoder and Beran conclude that
the documents “(a) would not have been generated but for the anticipated
litigation with the IRS, and (b) would not have been generated with the

Page 9 of 20

nature of the content they contained and the subjects they addressed but
for the anticipated litigation. These documents were not prepared in the
ordinary course of CAT’s business.” (Beran Aff. ¶ 22, d/e 69-2; see also
Yoder Aff. ¶ 24, d/e 69-3). E&Y’s privilege log asserts repeatedly that the
documents were “prepared by Ernst & Young at the request of McDermott
Will & Emery in anticipation of litigation with the IRS.”
In the Court’s opinion, Caterpillar’s expectation that the transaction
would be closely scrutinized by the IRS does not demonstrate that a
prospect of litigation existed when the documents were created. The
possibility that the IRS may decide at some point to challenge the
transaction in court is simply too remote on this record. The audit of
Caterpillar’s returns is in the ordinary course of business for Caterpillar—all
of its returns are audited. As the Seventh Circuit stated in In re Special
September 1978 Grand Jury (II), 640 F.2d 49, 65 (7th Cir. 1980), which
involved an IRS subpoena for MWE’s work related to a client’s tax filings,
“[a]lthough litigation could ultimately have ensued in connection with the . .
. tax filings, a remote prospect of future litigation is not sufficient to invoke
the work product doctrine.”2 See also United States of America v.

2

The Seventh Circuit also reasoned that, “[a]t most, the materials were prepared
with an eye toward a possible administrative proceeding with the IRS,” and concluded
that was not enough to warrant work-product protection. 640 F.2d at 65.
Page 10 of 20

Telephone and Data Systems, Inc., 2002 WL 2023767 * 3-4 (W.D. Wis.
2002)(not reported in F.Supp.2d)(documents purportedly prepared in
anticipation of audit pursuant to Coordinated Examination Program were
not subject to work-product protection because the possibility of litigation
was too remote).
Even if Caterpillar had demonstrated a sufficient prospect of litigation,
the documents reviewed by the Court were not prepared because of that
prospect. They were prepared to present and implement a complex
business restructuring plan in order to achieve financial efficiencies and
tax savings. These documents would have been prepared with or without
the specter of an IRS challenge. For example, the presentations, the step
plans, agendas, list of action items, and the legal corporate documents
necessary to implement the plan were all necessary to achieve the
transaction, not to defend against a possible IRS challenge. They would
have been drafted regardless. It is true that some of the documents give
tax advice and identify legal issues, but applicable laws have to be
identified and followed in order to achieve any business plan. Accepting
Caterpillar’s view would result in work-product protection for the

Page 11 of 20

implementation of business decisions that have little or nothing to do with
defending against legal claims.3
Thus the Court concludes that Caterpillar has not borne its burden of
demonstrating that the work-product doctrine applies to any of the E&Y
documents submitted for an in camera review, because it has not
demonstrated that the documents were prepared “because of the prospect
of litigation” or prepared because of an “articulable claim, likely to lead to
litigation.” The analysis thus stops for the documents for which the
privilege log asserts only the work-product doctrine, such as the invoices.
(EY-CAT-INV-00039-748; EY-CAT-INV-000 750-758). The bulk of the
privilege logs, however, also assert the attorney-client privilege, which is
addressed below.

3

Caterpillar cites U.S. v. Adlman, 134 F.3d 1194 (2d Cir. 1998), in which the
Second Circuit held that “a document created because of anticipated litigation . . . does
not lose work-product protection merely because it is intended to assist in the making of
a business decision influenced by the likely outcome of the anticipated litigation, and
would not have been prepared in substantially similar form but for the prospect of that
litigation . . . .” As discussed above, Caterpillar has not carried its burden of showing
that a prospect of litigation existed or that the documents were prepared because of
such prospect. Nor has Caterpillar explained how the documents would have been
prepared differently absent its fear of an IRS challenge. The other cases it cites, U.S. v.
Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006) and U.S. v. ChevronTexaco Corp., 241
F.Supp.2d 1065 (N.D. Cal. 2002), are distinguishable on the same basis.
Page 12 of 20

Il.

The attorney-client privilege.
Some of the E&Y in camera documents do meet the requirements of

the attorney-client privilege and they will be protected from disclosure.
They are communications from or to attorneys for the purpose of obtaining
or providing legal advice that appears to be confidential. These include
legal analysis by attorneys4 of tax law and other legal issues, drafts of and
comments on drafts of legal documents necessary to implement the plan,5
and information provided to the attorneys necessary to draft those
documents. Though many people were involved in receiving these
communications, it does not appear that any waiver occurred. Many
people were necessarily involved because of the complexity and scope of
the transactions. The Court notes also that Plaintiff was a party to and
authored some of these protected documents, but that fact does not negate
the attorney-client privilege, which belongs to Caterpillar.

4

Some of attorneys were in-house or from law firms other than MWE.

5

Not all the drafts entail confidential communications. Some appear to be stock
corporate forms with no comments or changes. These drafts do not appear to convey
any legal advice. See Musa-Muaremi v. FTD, Inc., 270 F.R.D. 312, 316 (2010)(“drafts
of a contract, which, when prepared by counsel or containing comments by counsel that
communicate legal advice, can be protected by attorney-client privilege.”). Additionally,
some of the documents are executed agreements, which would not contain confidential
legal advice.
Page 13 of 20

However, many of the documents do not meet the requirements of
the attorney-client privilege. For example, in order for the attorney-client
privilege to apply, the advice must be legal advice, not business advice.
Burden-Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003)(the attorneyclient privilege “extends . . . to communications about legal subjects, and it
is hard to see why a business evaluation meets that description.”); In re
Carl Walsh, 623 F.2d 489, 494 (7th Cir. 1980)(“Business or other advice is
not privileged, and should be distinguished from professional legal
services.”); see also Musa-Muaremi v. Florists’ Transworld Delivery, Inc.,
270 F.R.D. 312, 316 (N.D. Ill. 2010)(“The privilege does not, however,
protect business decision advice, even when that business advice is
rendered by an attorney or an attorney is one of those participating in the
business decision.”); Allendale Mut. Ins. Co. v. Bull Data Systems, 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.”); Wychocki v. Franciscan
Sisters of Chicago, 2011 WL 2446426 (N.D. Ill. 2011)(not reported)(“the
attorney-client privilege is restricted to confidential legal advice; financial or
business advice is not protected by the privilege.”)(emphasis in
original)(applying Illinois law but also citing In re Grand Jury Proceedings,
220 F.3d 568, 571 (7th Cir. 2000)). However, legal advice does include
Page 14 of 20

advice regarding compliance with the law, including tax laws. See Upjohn
Co. v. U.S., 449 U.S. 383, 394-95 (1981).
Many of the documents at issue involve devising, presenting, and
implementing the business transaction, not the providing confidential legal
advice. Legal advice was of course necessary to implement parts of the
plan, but that does not protect the entire transaction under the attorneyclient privilege.6 For example, the engagement letters do not fall under the
attorney-client privilege. These letters describe the work that E&Y will
perform, the terms and conditions of that performance, and the fee paid,
among other non-privileged issues. The transaction at issue is discussed
only generally, as a prelude to the scope of E&Y’s work, and essentially
reveals no more than what Caterpillar already revealed in its motion to
quash. The scope of the work to be performed by E&Y is also described in
broad, general terms. Much of the content appears to be boilerplate
language E&Y likely uses for all its clients.
Similarly, legal advice is not conveyed in the documents outlining the
business plan and its objectives; breaking the plan down into parts and

6

Some documents might contain confidential business information, but a
protective order such as the one in place is the remedy, not the attorney-client privilege.
(d/e 57, Agreed Protective Order).
Page 15 of 20

assigning responsibilities; setting agendas and action items; gathering
financial information; establishing micro and macro step plans; determining
the fair market value of affiliates; conducting feasibility studies; setting forth
spreadsheets, organizational charts, financial analysis and forecasts; or
conducting due diligence to determine the business wisdom of acquisitions.
Portions of some documents do provide advice on complying with
applicable laws, but that advice is given by non-lawyers. “The
attorney-client privilege protects communications made in confidence by a
client and a client's employees to an attorney, acting as an attorney, for the
purpose of obtaining legal advice.” Sandra T.E., 600 F.3d at 618; In re
Grand Jury Proceedings, 220 F.3d at 571 (7th Cir. 2001)(“‘[W]hat is vital to
the privilege is that the communication be made . . . for the purpose of
obtaining legal advice from the lawyer. . . . [I]f the advice sought is the
accountant's rather than the lawyer's, no privilege exists.’ ”)(quoted cites
omitted); see also United States of America v. Telephone and Data
Systems, Inc., 2002 WL 2023767 * 3 (W.D. Wis. 2002)(not reported in
F.Supp.2d)(attorney-client privilege did not apply to Arthur Anderson letter,
even though letter was similar to law firm’s letter which did enjoy attorneyclient privilege protection). The documents do not back up Caterpillar’s
argument that they “necessarily reflect legal analysis and opinions of
Page 16 of 20

attorneys from within Caterpillar and from McDermott that are protected by
the attorney-client privilege.” (d/e 69, p. 19).
Caterpillar contends that the attorney-client privilege applies, even to
the documents created by non-lawyers, because E&Y was acting as
MWE’s agent in a “Kovel” arrangement “to provide assistance to the
outside legal counsel for purposes of providing legal advice to Caterpillar.”
(d/e 69, p. 2). The documents submitted, though, do not support that
conclusion. Caterpillar does not adequately explain how these documents
helped any lawyers provide legal advice, determine litigation risks or assist
in the defense of any litigation. There are some documents containing
legal advice from attorneys, but the Court does not see how that advice
necessarily relied on E&Y’s assistance. Rather, the documents show that
E&Y and the law firms played separate, but coordinated roles in
implementing the plan. E&Y played a primary role in devising and
presenting the business idea to Caterpillar, as well as developing,
implementing and overseeing that plan. MWE and other law firms played
primary roles in providing legal advice and also in coordinating and
implementing the plan, but E&Y’s involvement was not necessary to the
rendering of that legal advice. Cf. Lawrence E. Jaffe Pension Plan, 244
F.R.D. 412, 420 (N.D. Ill. 2006)(attorney-client privilege applied where E&Y
Page 17 of 20

retained to “conduct complex quantitative analysis and extensive
information-gathering that was beyond” in-house counsel’s resources and
necessary to enable in-house counsel to provide legal advice on pending
litigation).
III.

Conclusion
The Court concludes that Caterpillar has not met its burden of

demonstrating the documents were prepared because of the prospect of
litigation, and thus the work-product doctrine does not apply. The attorneyclient privilege does protect some of the documents, which are identified
below, but not the remainder. By and large, these documents were created
to make and implement a business decision, not confidential
communications relating to legal advice from an attorney.
IT IS THEREFORE ORDERED THAT:
1) Defendant Caterpillar’s motion to quash Plaintiff’s subpoena to
Ernst and Young, LLP, is granted in part and denied in part (d/e 68). The
motion is GRANTED ONLY AS TO THE FOLLOWING DOCUMENTS
which the Court finds are protected by the attorney-client privilege:
EY-CAT:

568, 576-578, 579-595, 629, 686-732, 733-736, 861-879,
886-900, 925-937, 968-975, 979-980, 981-996, 10151021, 1026-1028, 1029-1031, 1032-1034, 1037-1045,
1052-1056, 1150-1153, 1165-1180, 1181-1184, 1191-

Page 18 of 20

1265, 1277-1289, 1290-1335, 1341-1362, 1365-1377,
1380-15867
EY-CAT-MHOW-EM: 4, 9-35
EY-CAT-SHUY-EM:

14-18, 22-25, 29-35, 37-55, 62-78, 81-85, 8795, 98-102, 106-115, 116-129, 130-171, 191197, 212-218, 233-34, 235-271, 273, 291-292,
296-313, 316-322, 326-341, 344-357, 361370, 376-78, 1963-1971, 1974-1982, 19871995, 2163-2170, 2175-2182, 2848, 28532881, 2886-2912, 2913, 2919-2945, 30333042, 3043-3112, 3279-3286, 3299-3325

EY-CAT-STHO-EM:

52-74, 77-81, 83-96, 100-114, 117-118, 121128, 130-162, 165-171, 173-175, 179-181,
183-192, 198-200, 734, 938-940, 1430, 14391448

2) Except for the documents identified in paragraph (1) above, the
motion to quash is denied as to the E&Y documents. By September 2,
2011, Caterpillar is directed to produce to Plaintiff all of the E&Y documents
submitted to this Court for an in camera inspection, except those identified
in paragraph (1) above.
3) The clerk is directed to keep motion #68 as pending on the docket
as it relates to the motion to quash the subpoena to Pricewaterhouse-

7

This group contains some documents that are not protected by the attorneyclient privilege, but they are duplicates of documents which have been ordered to be
produced. For ease of reference, the entire group (1380-1586) is cited, since Plaintiff
will otherwise be receiving the nonprivileged documents.
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Coopers. The PricewaterhouseCoopers documents will be addressed in a
separate order.
ENTER:

August 19, 2011
_______s/ Byron G. Cudmore_______
BYRON G. CUDMORE
UNITED STATES MAGISTRATE JUDGE

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