Willis v. Sears Holdings Management Corporation

Filing 47

WRITTEN Opinion entered by the Honorable Blanche M. Manning on 9/30/2011: Sears Holdings Management Corp.'s objection to Magistrate Judge Kim's July 22, 2011, order granting the plaintiff's motion to compel the production of documents D1851-52 [40-1] is overruled. Sears shall produce the requested documents within 7 days of the date of this order.Mailed notice(rth, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Blanche M. Manning

CASE NUMBER

10 CV 5926

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

September 30, 2011

Willis v. Sears Holdings Management Corp.

DOCKET ENTRY TEXT

Sears Holdings Management Corp.’s objection to Magistrate Judge Kim’s July 22, 2011, order granting the
plaintiff’s motion to compel the production of documents D1851-52 [40-1] is overruled. Sears shall produce
the requested documents within 7 days of the date of this order.

Docketing to mail notices.

O [ For further details see text below.]
00:00

STATEMENT
The defendant objects to an order entered by Magistrate Judge Young B. Kim on July 22, 2011, requiring it to
produce documents it contends are protected by the attorney-client privilege. Specifically, the order granted
the plaintiff’s motion to compel production of documents marked D1851-52, an e-mail chain that began (in
relevant part) as a message from the plaintiff’s supervisor, Kal Gibron, to Sears’ deputy general counsel,
Stephen Sitley, as well as human resources manager Kyra Patterson. The magistrate judge concluded that the
e-mails contained no attorney-client communications but, rather, merely asked “how to address a particularly
thorny personnel issue.” Magistrate Judge’s Order dated July 22, 2011 [39-1]. The defendant objects to the
magistrate judge’s order under Federal Rule of Civil Procedure 72(a).
The court begins its analysis with the standard of review for motions under Rule 72(a), an issue unaddressed
by the parties. Under Rule 72(a), a district judge may set aside a magistrate judge's ruling on a
non-dispositive motion if the ruling is clearly erroneous or contrary to law. See Schur v. L.A. Weight Loss
Centers, Inc., 577 F.3d 752, 760 (7th Cir. 2009). “The clear error standard means that the district court can
overturn the magistrate judge's ruling only if the district court is left with the definite and firm conviction that
a mistake has been made.” Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
With that standard in mind, the court has carefully reviewed the withheld document and the magistrate
judge’s ruling ordering that the documents be produced. As discussed above, the document is the printout of
an e-mail chain. In the portion of the chain that appears across pages D1851-52, the plaintiff’s supervisor,
Gibron, solicits the suggestions or thoughts of Sitley and Patterson regarding the plaintiff. Gibron does not
explicitly ask for legal advice, nor can any of Gibron’s statements made in the e-mail be reasonably construed
as asking for legal advice. He merely recounts discussions about the plaintiff and generally asks for
suggestions or thoughts from Sitley and Patterson. Indeed, in his response later in the e-mail chain, Sitley
states that the issue raised by Gibron is “not a legal issue” but rather a “performance management issue.”

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STATEMENT
The court acknowledges Sears’ representation that Sitley is “not simply another in-house lawyer at Sears,” but
rather “has been officially designated to act as internal legal counsel” from whom managers throughout Sears
seek “legal advice in dealing with personnel matters.” Objection [40-1] at 2. However, the attorney-client
privilege covers only those communications in which legal advice is requested or provided. See Babych v.
Psychiatric Solutions, Inc., 271 F.R.D. 603, 610 (N.D. Ill. 2011). Neither has occurred here. Rather, as the
magistrate judge aptly put it, the e-mails do not seek legal advice but, rather, concern a “thorny personnel
issue.” See id. (privilege does not extend to communications with in-house attorney acting as a business
advisor).
Accordingly, the defendant has not identified any clear error in the the magistrate judge’s July 22, 2011, order
and, therefore, the defendant’s objection to the order is overruled.

rs/cpb

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