Wielgus v. Ryobi Technologies, Inc. et al

Filing 106

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 8/4/2010. (aac, )

Wielgus v. Ryobi Technologies, Inc. et al

Doc. 106

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF ILLINOIS E A S T E R N DIVISION J A R O S L A W WIELGUS, ) ) P la in tif f , ) v. ) ) R Y O B I TECHNOLOGIES, INC., ONE ) W O R L D TECHNOLOGIES, INC., and ) H O M E DEPOT USA, Inc., ) ) D e f e n d a n ts. ) ----------------------------------------------------- ) ) R Y O B I TECHNOLOGIES, INC., ONE ) W O R L D TECHNOLOGIES, INC., and ) H O M E DEPOT USA, Inc., ) ) T h ird -P a rty Plaintiffs, ) v. ) ) J T D CONSTRUCTION, INC., ) ) T h ird -P a rty Defendant. )

C a s e No. 08 CV 1597 M a g is tr a te Judge Young B. Kim

A u g u s t 4, 2010

M E M O R A N D U M OPINION and ORDER B e f o re the court are the motions of defendants Ryobi Technologies, Inc., One World T e c h n o lo g ie s , Inc., and Home Depot USA, Inc., for sanctions [96] against third-party d e f e n d a n t JTD Construction, Inc. ("JTD") for failure to respond to their written discovery re q u e s ts and to compel [98] JTD or Travelers Insurance Company ("Travelers") to produce d o c u m e n ts requested in their third-party subpoena. Plaintiff in this case filed a product l i a b ility case, on March 19, 2008, against defendants alleging that the power saw he p u rc h a s e d in 2006 was unsafe as it lacked a flesh-detection safety feature and that the lack

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of this safety feature caused him serious personal injury on March 26, 2006. Although the c a p tio n identifies Jaroslaw Wielgus ("Wielgus") as the party plaintiff, he is involved in this c a s e in name only. Because Travelers compensated Wielgus in his workers' compensation c la im against his employer JTD, Travelers now sues defendants under its subrogation rights. In defense of this action, defendants filed a third-party complaint against JTD. The defense o f JTD in this action is also financed by its insurer, Travelers. For the following reasons, d e f e n d a n ts ' motion for sanctions [96], treated as a motion to compel, is granted and their m o tio n to compel [98] is granted in part and denied in part: P r o c e d u r a l History and Background O n December 5, 2008, defendants served a subpoena on Travelers for "[a]ny and all r e c o rd s relating to worker's compensation cause no. FZW2491, Jaroslaw Wielgus v. JTD C o n s tru c tio n , Inc." The subpoena ordered Travelers to produce the records by December 22, 2 0 0 8 . (R. 98, Ex. A.) Travelers never responded to the subpoena. (R. 98.) Six months la te r­ a n d more than a year ago­on May 13, 2009, defendants served JTD with their first set o f interrogatories and requests to produce. (R. 96, Exs. A, B, C.) Pursuant to Federal Rules o f Civil Procedure 33(b)(2) and 34(b)(2), JTD had until on or about June 12, 2009, to re s p o n d to the discovery requests. Through four extensions of the discovery completion d e a d lin e , JTD never responded to defendants' written discovery requests.

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On November 3, 2009, defendants served Travelers with a more detailed subpoena re q u e s tin g documents pertaining to Wielgus' workers' compensation claim against JTD. (R. 9 8 , Ex. B.) In this subpoena, defendants requested the following: P le a s e produce any and all records in your possession of any kind and nature p e rta in in g to the individual referenced below including but not limited to the complete workers' compensation file, any and all prior and subsequent w o rk e rs ' compensation claims, all medical records, medical examination re p o rts , medical bills, employment records and wage loss documentation, d o c u m e n ta tio n reflecting any and all workers' compensation payments and/or s e ttle m e n ts , vocational rehabilitation records, correspondence, workers' c o m p e n s a tio n petition(s), Form 45 accident reports, investigative notes and re p o rts , witness statements, witness lists, photographs, videotapes, films, CDro m s , any and all other materials of any type relating to the individual re f e re n c e d below and/or the subject claim. (R . 98, Ex. B.) The subpoena required a response by November 17, 2009. Travelers did not re s p o n d to the subpoena. However, on December 4, 2009, JTD advised defendants that T ra v e le rs sent the responsive documents to JTD. (R. 98, Ex. C.) JTD further advised that it was withholding various categories of documents based on "attorney-client and/or attorney w o rk product privileges." (Id.) Ten days later, on December 14, 2009, defendants asked J T D to provide them with a detailed privilege log. (R. 96, Ex. D.) JTD did not release any lo g s explaining the nature of the privilege it asserted. O n January 26, 2010, the court permitted JTD until February 16, 2010, to answer d e f e n d a n ts ' written discovery requests, which were still outstanding. According to the J a n u a ry 26, 2010, order, "JPM [sic] Construction is granted leave to respond to written d is c o v e ry on or by 2/16/2010." (R. 87.) JTD ignored this order and again failed to respond

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to the outstanding interrogatories and request to produce. On March 10, 2010, defendants a g a in requested JTD to provide the long overdue responses to their written discovery and the p riv ile g e log they asked for back in December 2009 within 14 days. (R. 96, Ex. D.) JTD ig n o re d this request as well. T h e n on April 6, 2010, the court ordered JTD to either produce the documents re s p o n s iv e to the Travelers subpoena or to submit a privilege log to defendants by April 20, 2 0 1 0 . (R. 88.) JTD ignored this order and offered defendants nothing. Defendants tried a g a in to secure JTD's compliance with the court order and requested the outstanding d is c o v e ry answers, but to no avail. (R. 96, Ex. E.) On May 26, 2010, the parties appeared f o r a status hearing. When asked by the court why JTD failed to turnover the ordered p riv ile g e log, JTD did not have a response. JTD merely asked for another chance to produce its privilege log. The court granted the oral request and permitted JTD one more chance to p r o d u c e a privilege log by June 11, 2010. (R. 92.) On June 9, 2010, JTD finally sent d e f e n d a n ts its privilege log in response to the documents defendants asked for in its subpoena to Travelers. (R. 93.) However, JTD still has not answered defendants' interrogatories or re q u e s ts to produce. (R. 96.)

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Analysis I . Motion for Sanctions T h e motion is granted.1 The court must treat defendants' motion for sanctions as a m o tio n to compel under Federal Rule of Civil Procedure 37. On January 26, 2010, the court e n te re d an order granting JTD additional time to respond to defendants' written discovery re q u e s ts . (R. 87.) Although defendants' interpretation of the court's order of January 26, 2 0 1 0 , that the court ordered JTD to respond to the discovery requests by February 16, 2010, is reasonable, the court did not specifically order JTD to respond by February 16, 2010. As s u c h , the court must treat defendants' motion for sanctions as a motion to compel JTD to re s p o n d to their written discovery requests. T h e record amply demonstrates that JTD has failed to respond to defendants' written d is c o v e ry requests and JTD has failed to show any cause for its failure to answer in a timely m a n n e r despite having had more than a year to formulate its response. Because JTD has f a ile d to timely respond to defendants' interrogatories and request to produce, JTD must re s p o n d fully and completely to the interrogatories and request for production of documents b y no later than August 20, 2010. JTD may not pose any objections to the interrogatories and re q u e s ts for production of documents as those objections, if any, are considered to have been w a iv e d . See Fed. R. Civ. P. 33(b)(4), 34(b)(2)(A); see also, Autotech Technologies Ltd.

1

The court permitted JTD until July 15, 2010, to file a response to the motion for sanctions (R . 100), but JTD did not file a response. 5

Partnership v. Automationdirect.com, Inc., 236 F.R.D. 396, 398 n.2 (N.D. Ill. 2 0 0 6 )(o b je c tio n s to request for production of documents under Rule 34 are deemed waived u n le s s timely made); Lincoln Diagnostics, Inc. v. Panatrex, Inc., No. 07 CV 2077, 2008 WL 4330182, *3 (Sept. 16, 2008)(untimely objections to Rule 34 requests are deemed waived). I I . Motion to Compel T h e motion is granted in part and denied in part.2 JTD has withheld certain documents re s p o n s iv e to defendants' subpoena served on its insurer, Travelers, based on the attorneyc lie n t and attorney work-product privilege.3 As a general matter, Federal Rule of Civil P r o c e d u re 26(b)(1) provides that a party may "obtain discovery regarding any matter, not p riv ile g e d , that is relevant to any party's claim or defense--including the existence, d e s c rip tio n , nature, custody, condition and location of any books, documents, or other ta n g ib le things and the identity and location of persons who know of any discoverable m a tte r." Pursuant to Federal Rule of Civil Procedure 26(b)(5), when a party withholds in f o rm a tio n otherwise discoverable by claiming privilege, the party must then make the p riv ile g e claim and then disclose a privilege log contain the following information for each

2

The court permitted JTD until July 15, 2010, to file a response to the motion compel (R. 1 0 0 ), but JTD did not file a response. Instead, on July 15, 2010, JTD filed a motion for in c a m e ra inspection of the disputed documents, which the court denied (R. 104.) The court presumes that the withheld responsive documents are relevant or that they may le a d to relevant evidence as JTD's only reason for refusing to turn over the documents in q u e s tio n is that they are immune from disclosure. This decision does not pass any judgment o n the admissibility or relevance of any of the identified documents. 6

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document: (1) the date, the author and all recipients, along with their capacities; and (2) s u b je c t matter of the document, purpose for its production, and an explanation as to why the d o c u m e n t is privileged or immune from discovery. The explanation must be sufficiently s p e c if ic to allow the court to determine whether the claimed privilege or immunity is a p p lic a b le . T h e attorney-client privilege protects verbal and written communications exchanged in confidence between a client and an attorney for the purpose of obtaining legal advice. See U p jo h n Co. v. United States, 449 U.S. 383, 394-99 (1981). In a diversity action, such as in th is action, the applicability and scope of attorney-client privilege is governed by the law of t h e forum state. Urban Outfitters, Inc. v. DPIC Companies, Inc., 203 F.R.D. 376, 378 (N .D .Ill.2 0 0 1 ); see also Fed. R. Evid. 501. Illinois law governing attorney-client privilege is identical to federal law in that they both require the court to determine whether legal a d v ic e of any kind was sought from an attorney in his or her capacity as an attorney, whether th e material sought in discovery contains communication related to the purpose of seeking s u c h legal advice and whether such communication was made in confidence. See id. and S a n d ra T.E. v. South Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). T h e Supreme Court of Illinois has also extended the attorney-client privilege to c o m m u n ic a tio n s between an insured and insurer where the insurer owes an obligation to d e f e n d the insured. Pietro v. Marriot Senior Living Servs., Inc., 348 Ill.App.3d 541, 552 (Ill.A p p .C t. 2004). The rationale for the extension of the privilege is that agents of insurers 7

serve as a communication conduit between an insured and the attorney to be retained by the in s u re r for the benefit of the insured and his or her defense. People v. Ryan, 30 Ill.2d 456, 4 6 1 (Ill. 1964) In order to rely on this subset insurer-insured privilege under the broader a tto rn e y-c lie n t privilege, the party asserting the privilege must show the following: "(1) the id e n tity of the insured; (2) the identity of the insurance carrier; (3) the duty to defend a la w s u i t ; and (4) that a communication was made between the insured and an agent of the in s u re r." Id. Of course, in order for the privilege to attach, such communication must have re m a in e d confidential. W h ile the attorney-client privilege is governed by Illinois law in this case, the w o rk -p ro d u c t doctrine is determined by federal law. See Fed. R. Civ. P. 26(b)(3). Unlike th e attorney-client privilege, work-product privilege protects documents prepared by a tto rn e ys in anticipation of litigation for the purpose of analyzing, evaluating and preparing a client's case. See United States v. Smith, 502 F.3d 680, 689 (7th Cir.2007). As such, the c o u rt must determine whether the documents sought in discovery contains an attorney's th o u g h t processes and mental impressions in order to decide whether the work-product d o c trin e applies. See Sandra T.E., 600 F.3d at 621-22. However, the courts in the Northern D is tric t of Illinois have construed Rule 26(b)(3) to limit this protection to one who is a party (o r a party's representative) to the litigation in which discovery is sought. See Cook v. City o f Chicago, No. 06 CV 5930, 2010 WL 331737, *1 (Jan. 26, 2010).

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Here, JTD has withheld the following documents4 asserting both the attorney-client a n d attorney work-product privilege: 1. 1 5 0 pages of Travelers' Internal Claim Handlers' File Activity Notes from v a rio u s workers' compensation claims handlers assigned to the claim th ro u g h o u t the years detailing file activity, investigation, and evaluations, d a te d March 27, 2006, to November 17, 2009; E ig h t-p a g e invoice from Boies, Schiller & Flexner, LLP, to Travelers claims h a n d le r for legal work regarding saw litigation dated September 25, 2008; N in e -p a g e s of Travelers' Internal Claim Handlers' File Activity Notes from v a rio u s workers' compensation claims handlers assigned to the claim th ro u g h o u t the years detailing file activity, investigation, and evaluations, d a te d January 5, 2009 to November 10, 2009; O n e -p a g e letter from Diana Rohlfs ("Rohlfs"), Travelers Claim R e p re s e n ta tiv e , to JTD advising handling of workers' compensation claim of J a ro s la w Wielgus (plaintiff) dated March 29, 2006; T w o -p a g e letter from Claims Representative Rohlfs to JTD requesting wage s ta te m e n t of plaintiff dated March 29, 2006; F o u r-p a g e Travelers' Internal Claim Handlers' File Activity Notes from v a rio u s workers' compensation claims handlers assigned to the claim dated M a rc h 28, 2006; T w o -p a g e letter from Claims Representative Rohlfs to Travelers Staff C o u n s e l, Thomas P. Marnell & Associates, assigning workers' compensation c la im representation dated April 3, 2006; S e v e n -p a g e letter from Karen Blandford ("Blandford"), Travelers National W o rk e rs ' Compensation Recovery Center, to Sullivan & Sullivan, LLP re f e rrin g claim for representation on workers' compensation subrogation is s u e s dated June 20, 2006; 1 2 -p a g e letter from Sullivan & Sullivan, LLP to Jennifer Wartlift ("Wartlift"), T ra v e le rs Subrogation Department, outlining recovery and litigation plan dated J a n u a ry 30, 2008;

2. 3.

4.

5. 6.

7.

8.

9.

4

The descriptions of these documents have been derived from JTD's privilege log. (R. 93.) 9

10.

T w o -p a g e Travelers Interoffice Memorandum from Jennifer Campbell (" C a m p b e ll" ), Travelers Claim Legal Group, to Wartlift in subrogation c o n c e rn in g investigation and analysis dated August 16, 2007; O n e -p a g e Travelers Interoffice Memorandum from Timothy Costello to Kelly G ilf e r t ("Gilfert"), Claims Handler, Travelers Subrogation Department, a u th o riz in g payment of claim expenses, dated 9/3/09; S ix -p a g e letter from Travelers Staff Counsel, Maisel & Associates to JTD and J u lie Stubbe ("Stubbe"), Travelers Claims Handler, concerning representation o f JTD, initial case analysis and litigation expense forecast dated January 26, 2009; N in e -p a g e letter from Travelers insured Janusz Dyczko to Zofia Liszcz at T ra v e l e r s concerning attorney representation letters and initial case analysis a n d litigation expense forecast sent to insured by counsel dated January 26, 2009; S ix -p a g e report from Chicagoland Investigative Services to Anita Burns, SIU In v e s tig a to r at Travelers, concerning pre-litigation investigation dated F e b ru a ry 7, 2007; 1 6 pages of invoice from Esquire for depositions dated December 26, 2008, to July 16, 2009; 1 2 -p a g e letter from Sullivan & Sullivan, LLP to Subrogation Claims Handler G ilf e rt outlining litigation costs recovery and litigation plan dated January 30, 2008; T w o -p a g e internal Travelers claims handler memorandum from Subrogation C la im s Handler Gilfert with claim file analysis notes dated June 28, 2008; T w o -p a g e letter from Kelly Sidebottom ("Sidebottom"), Claim Analyst, T ra v e le rs ' Workers' Compensation Unit, to Travelers Staff Counsel Maisel & A ss o c ia te s regarding representation dated December 18, 2008; O n e -p a g e letter from Staff Counsel, Jeff Goldberg ("Staff Counsel Goldberg") o f Holecek & Associates to Sara McDonald ("McDonald"), Travelers W o rk e rs ' Compensation Claim Handler, regarding status of workers' c o m p e n s a tio n case dated May 2, 2007; O n e -p a g e letter from Staff Counsel Goldberg to Claims Handler McDonald re g a rd in g status of workers' compensation case dated May 30, 2007; O n e -p a g e letter from Staff Counsel Goldberg to Claims Handler McDonald re g a rd in g status of workers' compensation case dated July 3, 2007;

11.

12.

13.

14.

15. 16.

17. 18.

19.

20. 21.

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22. 23.

T h re e -p a g e Travelers claims handler's notes concerning evaluation of w o rk e rs ' compensation claim dated December 22, 2008; 1 9 5 pages of Travelers' Internal Claim Handlers' File Activity Notes from v a rio u s workers' compensation claims handlers assigned to the claim th ro u g h o u t the years detailing file activity, investigation, discussions with c o u n s e l, and evaluations, dated March 27, 2006, to December 19, 2008; T w o -p ag e Travelers' Internal Claim Handlers' Claim Report from unidentified a u th o r dated December 22, 2008; T h r e e -p a g e Travelers' Internal Claim Handlers' Workers' Compensation A ss ig n m e n t Report from Case manager KS to Supervisor BLM dated D e c e m b e r 28, 2008; and O n e -p a g e Internal Staff Counsel investigation report regarding workers' c o m p e n s a tio n claim search dated December 23, 2008.

24. 25.

26.

J T D has also withheld the following documents based on the attorney-client privilege o n l y: 27. 28. 29. T h re e -p a g e Travelers' Interoffice Memorandum from Claims Analyst S id e b o tto m to set up new claim dated December 18, 2008; O n e -p a g e letter from Claims Analyst Sidebottom to Maisel & Associates re g a rd in g workers' compensation representation dated November 17, 2009; O n e -p a g e letter from Susan Ingalls ("Ingalls"), Claim Analyst, Travelers' W o rk e rs ' Compensation Unit to insured JTD dated January 7, 2009, to a c k n o w le d g e pending workers' compensation claim; T w o -p a g e letter from Claim Analyst Ingalls to JTD dated January 7, 2009, to c o n f irm acknowledgment of workers' compensation claim; S ix -p a g e letter to Subrogation Claims Handler Gilfert from Sullivan & S u lliv a n , LLP dated August 7, 2009 with billing and expenses statement; T w o -p a g e letter to Subrogation Claims Handler Gilfert from Sullivan & S u lliv a n , LLP dated August 14, 2009, detailing billing and expenses; T h re e -p a g e letter from Claims Representative Rohlfs to JTD acknowledging c o m p e n s a b le workers' compensation claim dated April 3, 2006;

30. 31. 32. 33.

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34.

O n e -p a g e letter from Blandford, Travelers National Workers' Compensation R e c o v e ry Center, to JTD concerning reimbursement of benefits dated May 3, 2006; O n e -p a g e letter from Blandford to JTD requesting contracts dated May 9, 2006; S e v e n -p a g e letter from Blandford to Sullivan & Sullivan, LLP referring claim f o r representation on workers' compensation subrogation issues dated June 30, 2 0 0 6 ; and O n e -p a g e letter from insured Janusz Dyczko ("Dyczko") to Claims R e p re s e n ta tiv e Rohlfs of Travelers regarding employment of plaintiff dated M a y 1, 2006.

35. 36.

37.

B e c a u s e JTD withheld documents responsive to a properly served subpoena on its in s u re r, JTD had the burden of asserting that the documents are subject to protection under th e attorney-client and work-product privilege and to describe the nature of the documents a n d communication contained therein in order to permit the court to make a reasonable a s s e s sm e n t of the privilege's applicability. Applying the relevant and applicable laws to the d o c u m e n ts withheld by JTD, the motion to compel is denied as to document numbers 7-9, 1 2 , 13, 16, 18-21, 28 and 36. However, the motion to compel is granted as to document n u m b e rs 1-6, 10-15, 17, 22-27, 29-35 and 37 and JTD is ordered to turn them over to d e f e n d a n ts by August 20, 2010. T h e court must point out that JTD did not file a response objecting to defendants' m o tio n to compel and did not provide any more detailed information about the documents J T D is withholding. JTD's filing of a motion to have the court review the hundreds of pages o f documents and to have the court determine on its own whether a particular document is

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protected from disclosure places the litigation burden on the court and undermines the p u rp o s e of Federal Rule of Civil Procedure 26(b)(5)(A). In order to give effect to Rule 2 6 (b )(5 )(A ), the court must rule on defendants' motion to compel based on the information c o n ta in e d in JTD's privilege log dated June 9, 2010. A review of this privilege log shows that the 37 categories of documents identified a s responsive documents in the log can be sorted into six broader categories of documents: (1 ) documents generated by various Travelers' claims adjusters pertaining to the processing o f Wielgus' workers' compensation claim against JTD; (2) documents containing c o m m u n ic a tio n between various Travelers' claims adjusters and its insured JTD; (3) internal d o c u m e n ts containing communication among Travelers' employees regarding the workers' c o m p e n s a tio n claim and subrogation rights; (4) documents containing communication b e tw e e n Travelers' claims adjusters and the attorneys retained by Travelers for the workers' com pensation litigation; (5) documents containing communication between Travelers' claims a d ju s te rs and non-attorneys retained by Travelers for the case at bar; and (6) documents c o n ta in in g communication between Travelers' claims adjusters and the attorneys retained by T ra v e le rs for the case at bar. A s to the first category of documents (## 1, 3, 6, 22 and 23), while JTD asserts both t h e attorney-client and work-product privileges as to these documents, neither of these p riv ile g e s attaches to these documents. First, the privilege log does not offer any information a b o u t the various Travelers' claims adjusters who prepared these notes and whether any of 13

the notes contain communication related to the purpose of seeking legal advice and whether s u c h communication was made in confidence. Second, the work-product privilege is not a p p lic a b le to these documents because the privilege log does not detail that any of the notes in this category were prepared by an attorney in anticipation of litigation. Therefore, there is nothing to suggest that an attorney's thought processes or mental impressions pertaining to the litigation in this case are contained in these notes. A s to the second category of documents (## 4, 5, 12, 13, 29, 30, 33-35 and 37), the a tto rn e y-c lie n t privilege (including the insured-insurer privilege) protects documents ## 12 a n d 13. As detailed by the privilege log, document # 12 is a six-page letter from Maisel & A s so c ia te s ("Maisel"), Travelers' Staff Counsel, to JTD and Stubbe, a claims handler, c o n c e rn in g JTD's representation, including the initial case analysis and litigation expense f o re c a s t. Document # 13 is a nine-page letter sent from JTD to Travelers concerning the s a m e subject matters. The description of the documents raises an inference that these d o c u m e n ts contain communication made for the purpose of seeking and providing c o n f id e n tia l legal advice. H o w e v e r, the attorney-client privilege does not attach to documents ## 4, 5, 29, 30, 3 3 -3 5 and 37, because the privilege log does not offer any information to support an in f e re n c e that these documents contain confidential communication. Furthermore, the workp ro d u c t privilege does not attach to documents ## 4 and 5 because these documents consist o f two letters Rohlfs sent to JTD advising JTD about Wielgus' workers' compensation claim 14

and requesting Wielgus' wage statement and do not show that an attorney prepared these d o c u m e n ts or that they contain an attorney's thought processes or mental impressions p re p a re d in anticipation of litigation. A s to the third category of documents (## 10, 11, 17, 24-27), the attorney-client p riv ile g e does not apply. The privilege log does not offer any information that the various T ra v e le rs' agents identified in the log, including Campbell, Wartlift, Costello, Gilfert, S id e b o tto m , a manager referred to as "KS" and a supervisor referred to as "BLM" are a tto rn e ys or that they were acting in their capacity as attorneys. Also, the privilege log does n o t contain any information that these internal documents contain confidential legal advice o r confidential information communicated to an attorney for the purpose of seeking legal a d v ic e . Also, the work-product privilege does not attach to documents ## 10, 11, 17, and 242 6 because the privilege log does not detail that these internal communications and reports c o n s titu te documents prepared by an attorney in anticipation of litigation reflecting their th o u g h t processes or mental impressions. A s to the fourth category of documents (## 7, 19-21), letters to and from Travelers to its attorneys on the workers' compensation case, the attorney-client privilege protects these d o c u m e n ts from production. The privilege log details that the communications involve four le tte rs sent between JTD's insurer, Travelers, and Travelers' attorneys, including Thomas P. M a rn e ll & Associates ("Marnell") and Staff Counsel Goldberg. These four letters can be

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viewed as those which constitute confidential communications between JTD (through its in s u re r) and its attorneys for the purpose of seeking and providing legal advice. A s to the fifth category of documents (## 14 and 15), neither the attorney-client nor the work-product privilege attaches to these documents. The privilege log does not offer any in f o rm a tio n to demonstrate that either the author of the Chicago Investigative Services report o r Anita Burns is an attorney or that either of them were acting in their capacity as an a tto rn e y. Also, an invoice from a court reporting service for fees related to depositions can h a rd ly be considered privileged. A s to the last category of documents (## 2, 8, 9, 16, 18, 28, 31, 32 and 36), the a tto rn e y-c lie n t privilege attaches to documents ## 8, 9, 16, 18, 28 and 36, but does not attach to documents ## 2, 31 or 32. The attorney-client privilege is applicable to documents ## 8, 9 , 16, 18, 28 and 36 because the privilege log details that these communications were sent b e tw e e n JTD's insurer and its attorneys Maisel and Sullivan & Sullivan, LLP ("Sullivan") f o r purposes of seeking and providing legal advice. For example, document # 9 is a 12-page le tte r from an attorney to JTD's insurer outlining the litigation cost and litigation plan in this case. H o w e v e r, the attorney-client privilege does not attach to documents ## 2, 31, and 32, b e c a u s e these are invoices from attorneys to JTD's insurer for legal work performed and the lo g does not contain any information to support an inference they contain confidential c o m m u n ic a tio n s . The work-product privilege also does not attach to document # 2 because 16

the privilege log does not offer any information that this invoice contains the thought p ro c e s s e s or mental impressions of JTD's attorneys. C o n c lu s io n F o r the foregoing reasons, defendants' motion for sanctions [96] is granted and d e f e n d a n ts ' motion to compel [98] is granted in part and denied in part. JTD is ordered to re s p o n d fully and completely to defendants' interrogatories and requests for production of d o c u m e n t s and turn over a copy of documents ## 1-6, 10-15, 17, 22-27, 29-35 and 37 to defendants by August 20, 2010. ENTER:

_________________________________ Y o u n g B. Kim U n ite d States Magistrate Judge

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