Dunnet Bay Construction Co v. Hannig
Filing
71
OPINION by U.S. Magistrate Judge Byron Cudmore: Plaintiff Dunnet Bay Construction Company's Motion to Compel Production by Governor Quinn and the Office of the Governor 58 is ALLOWED in part and DENIED in part. See written order. (LB, ilcd)
E-FILED
Monday, 07 May, 2012 09:34:05 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DUNNET BAY CONSTRUCTION
COMPANY, an Illinois Corporation,
Plaintiff,
v.
GARY HANNIG, in his official
capacity as Illinois Secretary of
Transportation, and
ILLINOIS DEPARTMENT
OF TRANSPORTATION,
Defendants.
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No. 10-3051
OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Dunnet Bay
Construction Company’s (Dunnet Bay) Motion to Compel Production by
Governor Quinn and the Office of the Governor (d/e 58). Dunnet Bay sent
a subpoena duces tecum to Illinois Governor Pat Quinn and the Office of
the Governor (collectively the Governor). In response, the Governor
produced certain documents and withheld other documents under claims
of privilege. Dunnet Bay moves to compel the Governor to produce the
withheld documents. The Court has inspected the documents at issue
in camera. After careful review and consideration of the submissions of
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Dunnet Bay and the Governor, and the in camera inspection, the Motion is
ALLOWED in part and DENIED in part.
BACKGROUND
Dunnet Bay brings this action under 42 U.S.C. §§ 1981, 1983, 2000d,
740 ILCS 23/5 against the Defendant Illinois Department of Transportation
(Department) and Illinois Transportation Secretary Gary Hannig for alleged
racial discrimination in awarding highway construction contracts in Illinois.
Second Amended Complaint (d/e 19). On January 7, 2011, Dunnet Bay
mailed a subpoena duces tecum (Subpoena) to the Governor by certified
mail return receipt requested. On April 12, 2011, counsel for the Governor
notified Dunnet Bay’s counsel that documents were being collected. The
Governor produced documents along with a privilege log of withheld
documents on October 26, 2011. Dunnet Bay objected to the adequacy of
the privilege log by letter dated October 28, 2011. Counsel for the
Governor was delayed in responding to the October 28, 2011, letter
because of the birth of his child and subsequent complications with the
health of the child. Motion, Exhibit H, Letter from Counsel for Governor,
dated December 1, 2011.
On December 1, 2011, counsel for the Governor responded with
some additional documents and a revised privilege log. Dunnet Bay filed
this Motion on January 19, 2012.
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ANALYSIS
A party to an action, such as Dunnet Bay, may subpoena documents
from a third party, such as the Governor. Fed. R. Civ. P. 45(a)(1)(D). The
Governor must raise objections to the subpoena in writing. Fed. R. Civ. P.
45(c)(2)(B). The Governor, further, must provide a privilege log for any
documents withheld under the claims of privilege. Fed. R. Civ. P. 45(d)(2).
Dunnet Bay may then seek an order compelling production of any withheld
documents. Fed. R. Civ. P. 45(c)(2)(B)(ii).1
Initially, both parties argue that the other waived its position. Dunnet
Bay argues that the Governor waived its right to raise its claims of privilege
because the response to the Subpoena was not timely. The Governor
argues that Dunnet Bay waived its right to compel production because the
Motion was untimely. The Court rejects both parties’ arguments.
Dunnet Bay argues that the Governor failed to assert claims privilege
within fourteen days of service of the Subpoena. See Fed. R. Civ. P.
45(c)(2)(B). Rule 45(c)(2)(B) states the party served with a subpoena must
serve objections in writing within fourteen days after the subpoena was
served. Dunnet Bay, however, failed to properly serve the Subpoena.
Subpoenas must be served personally. Fed. R. Civ. P. 45(b)(1); York
1
The Motion only concerns the Governor’s claims of privilege. The Court,
therefore, does not address any issues of relevance or undue burden of production.
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Group, Inc. v. Wuxi Taihu Tractor Co., Ltd., 632 F.3d 399, 402 (7th Cir.
2011); Murray v. Nationwide Better Health, 2011 WL 2293376, at *1 (C.D.
Ill. June 9, 2011). Dunnet Bay improperly mailed the Subpoena to the
Governor. The Court will not require the Governor to respond within
fourteen days of service when proper service was never made.2
Dunnet Bay also argues that Governor waived the claims of privilege
because the original privilege log was inadequate. This Court should not
find a blanket waiver of privilege from an insufficient privilege log as long as
the party subject to the subpoena acts in good faith to resolve deficiencies
in the log. American National Bank and Trust Co. of Chicago v. Equitable
Life Assurance Society of the United States, 406 F.3d 867, 879-80 (7th Cir.
2005). The Court finds that both parties have been acting in good faith,
and so, waiver on this basis is not proper.
The Governor argues that Dunnet Bay waived its right to compel
production because it waited too long to bring the Motion. The Scheduling
Order (d/e 33) states that motions to compel must be brought within sixty
days of the event that is the subject of the motion. Scheduling Order ¶ 5.
The Governor argues that Dunnet Bay was required to bring the Motion
2
The Court does not address whether the fourteen day requirement is limited to
raising objections or includes asserting claims of privilege. See Tuite v. Henry, 98 F.3d
1411, 1416 (D.C. Cir. 1996), but see Ventre v. Daltronic Rental Corp., 1995 WL 42345,
at *4 (N.D. Ill. February 2, 1995) .
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within sixty days of the October 26, 2011, production. In this case,
however, a significant portion of any delay was attributable to the family
emergency of the counsel for the Governor. The delay associated with the
birth of counsel’s child and the subsequent complications is
understandable and entirely proper. The Court, however, will not penalize
Dunnet Bay for a commensurate delay in the filing of this Motion.
The Governor also argues that Dunnet Bay’s Motion should be
denied because Dunnet Bay did not meet and confer with the Governor to
attempt to resolve this dispute before resorting to the Court. Rule 37
requires the moving party to certify that it attempted to meet and confer
with the non-disclosing person or party to resolve the difficulties before
filing a motion to compel; Rule 45 does not. Compare Fed. R. Civ. P. 37(a)
with Fed. R. Civ. P. 45(c)(B)(i). The authors of the Rules chose not to
include a meet and confer requirement in Rule 45, and the Court will not
impose such a requirement. Dunnet Bay may proceed with the Motion,
and the Governor may assert claims of privilege.
The Governor asserts three privileges: deliberative process privilege,
attorney-client privilege, and work product privilege. Dunnet Bay argues
that the deliberative process privilege is not available in this case. Dunnet
Bay also challenges the applicability of the attorney-client and work product
privileges. The Court agrees that the deliberative process privilege does
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not apply. The Court further finds, after in camera inspection, that none of
the documents listed in the Governor’s privilege logs are protected by the
work product privilege, and that certain documents are not protected by the
attorney-client privilege.
The deliberative process privilege is recognized under federal
common law. The privilege “protects communications that are part of the
decision-making process of a governmental agency.” United States v.
Farley, 11 F.3d 1385, 1389 (7th Cir. 1993). Illinois, however, does not
recognize any deliberative process privilege. People ex rel. Birkett v. City
of Chicago, 184 Ill.2d 521, 533, 705 N.E.2d 48, 53(Ill. 1998). Federal
common law regarding privileges controls in this case because Dunnet Bay
asserts federal claims as well as state law claims. See Memorial Hosp. for
McHenry County v. Shuder, 664 F.2d 1058, 1061 (7th Cir. 1981).
Dunnet Bay argues that the Court should follow Illinois law out of
considerations of comity. The Court disagrees. The cases on which
Dunnet Bay relies indicate that federal courts may sometimes apply state
law privileges that would not otherwise be recognized by federal law out of
considerations of comity; the cases do not support the contention that
federal courts should not apply a federal privilege law when some of the
plaintiff’s claims are based on federal law. See Shuder, 664 F.2d at 1061;
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Moorehead v. Lane, 125 F.R.D. 680, 682,-83 (C.D. Ill. 1989). Dunnet Bay
has asserted federal claims, and so, federal privilege law applies.
The deliberative process privilege, however, does not apply when the
lawsuit puts at issue the intent of the officials making the governmental
policy decision. In re Subpoena Duces Tecum Served on Office of
Comptroller of Currency, 156 F.3d 1279, 1279 (D.C. Cir. 1998); Segar v.
Holder, 227 F.R.D. 9, 13 (D.D.C. 2011); Jones v. City of College Park, Ga.,
237 F.R.D. 517, 520 (N.D. Ga. 2006). Dunnet Bay alleges claims under
42 U.S.C. §§ 1981 and 1983. Both claims require proof of intentional
discrimination. T.E. v. Grindle, 599 F.3d 583, 589 (7th Cir. 2010); Majeske
v. Fraternal Order of Police, Local Lodge No. 7, 94 F.3d 307, 312 (7th Cir.
1996). Thus, the intent of Defendant Hannig and the decision makers
responsible for the Department’s actions are at issue. In such
circumstances, the deliberative process privilege must yield to the
interests of determining the governmental agents’ intent. Jones, 237
F.R.D. at 520. The deliberative process privilege therefore does not apply
in this case. The claims of deliberative process privilege are overruled.
The work product privilege applies in this case; however, the Court
finds, after in camera inspection, that none of the documents withheld are
subject to the work product privilege. The work product privilege applies to
documents prepared in anticipation of litigation or for trial. Fed. R. Civ. P.
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26(b)(3). None of the documents withheld were prepared in anticipation of
litigation, or for trial. Thus, the claims of work product privilege are
overruled.
The attorney-client privilege applies to confidential communications
made with an attorney in connection with the provision of legal services
and in the context of an attorney-client relationship. United States v. BDO
Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007). The attorney-client
privilege further attaches to communications between third parties who
share a common legal interest. Id. at 815-16; Papered Chef v. Alexanian,
737 F.Supp.2d 958, 964-66 (N.D. Ill. 2010). After review of the documents,
the Court finds that the Governor and the agencies of Illinois government
under the control of the Governor had a sufficient common legal interest in
this instance to apply the privilege to the confidential communications
among their representatives. The documents indicate that the Governor
and the agencies involved were working together in relation to policies
regarding government contracts and contractors owned by women and
minorities.
The Court further finds, after in camera review, that most of the
withheld documents are protected by the attorney-client privilege. They
consists of confidential communications made in connection with either
seeking legal advice or rendering legal advice.
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Some of the documents, however, are not protected by the attorneyclient privilege. The Court overrules the claim of attorney-client privilege
for the documents identified by the following Bates Stamp page numbers:
00084-00086;
1054;
1059;
1068;
1071-72;
1075-76;
1079-80;
1097;
1209-1217;
1219-20;
1222-27;
1229-33;
1235-36;
1238-39;
1241;
1443-48;
1740-78;
1813-1927;
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1929 (item number 4, however, is privileged and should be redacted);
1930 (item number 4, however, is privileged and should be redacted);
1931-32 (item number 4, however, is privileged and should be redacted);
1935-40;
1965-67;
1976-81;
2091 (item number 4, however, is privileged and should be redacted);
2092 (item number 4, however, is privileged and should be redacted);
2101;
2105-06;
2108-10;
21153;
2116-17;
2153-59;
2165a-67;
2168-73; and
2175-76.
The Court finds that the documents listed above do not relate to the
provision of legal service or legal advice, or are not confidential. The Court
3
The Governor only asserted the deliberative process privilege for this document.
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sustains the claim of attorney-client privilege as to the remaining
documents.
The Governor asks a protective order for the documents to be
disclosed. The parties and the Governor are directed to prepare an agreed
protective order. If no agreement can be reached, any party or the
Governor may file a motion with a proposed protective order.
WHEREFORE Plaintiff Dunnet Bay Construction Company’s Motion
to Compel Production by Governor Quinn and the Office of the Governor
(d/e 58) is ALLOWED in part and DENIED in part. The Court overrules the
claim of privilege under the deliberative process privilege and work product
privilege. The Court overrules the claims of attorney-client privilege with
respect to the documents listed in this Opinion. The Court sustains the
claim of attorney-client privilege as to the remaining documents at issue.
The Governor is directed to produce the documents listed in this Opinion
by June 15, 2012. The parties and the Governor are directed to prepare an
agreed protective order by May 21, 2012. If no agreement can be reached
by that time, any party or the Governor may file a motion with a proposed
protective order. The Motion is otherwise denied.
ENTER: May 7, 2012
s/ Byron G. Cudmore
BYRON G. CUDMORE
UNITED STATES MAGISTRATE JUDGE
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