Suppressed v. Suppressed
MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 4/4/2017:Mailed notice(jms, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA, ex. rel.
MICHAEL McGEE, AND PEOPLE
OF THE STATE OF ILLINOIS
ex rel. MICHAEL McGEE,
IBM CORPORATION, et al.,
No. 11 C 3482
Judge Thomas M. Durkin
Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
The parties in this qui tam case are at odds over the defendant’s wide-ranging claims of
attorney-client privilege and work product as to thousands of documents defendant is withholding
from discovery. Of course, step one in asserting the claim of privilege or work product as to
documents is the compilation of a privilege log. Under Fed.R.Civ.P 26(b)(5), such a log must be
sufficiently detailed in its description of the documents that an assessment of the claim can be made.
The privilege log the defendant has submitted, woefully inadequate in more than one aspect, does
not begin to approach that basic requirement.
We begin with a reminder of what the attorney-client privilege and the work product doctrine
are all about. The attorney-client privilege “‘is the oldest of the privileges for confidential
communications known to the common law.’” United States v. Jicarilla Apache Nation, 564 U.S.
162, 169 (2011) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). Its purpose is “to
encourage full and frank communication between attorneys and their clients and thereby promote
broader public interests in the observance of law and administration of justice.” Upjohn, 449 U.S.
at 389. See also generally the extensive discussion in Pampered Chef v. Alexanian, 737 F.Supp.2d
958 (N.D.Ill. 2010). While the goal is laudable, it is, after all, a derogation in the search for the truth
and so, the privilege must be narrowly construed. The privilege ultimately obstructs the search for
truth and to the long recognized obligation of all citizens to give evidence—an obligation expressed
in the fundamental maxim that “‘the public...has a right to every man's evidence....’” United States
v. Nixon, 418 U.S. 683, 709 (1974). “[E]xceptions . . . are not lightly created nor expansively
construed, for they are in derogation of the search for truth.” Id. at 710. Accord United States v.
Jacarilla Apache Nation, 564 U.S. 162, 189 (2011); University of Pennsylvania v. E.E.O.C., 493
U.S. 182, 189 (1990).
The party seeking to invoke the privilege bears the burden of proving all of its essential
1) Where legal advice of any kind is sought (2) from a professional legal adviser in
his capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal adviser, (8) except the protection be waived.
United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997)(quoting 8 John Henry Wigmore,
Evidence in Trials at Common Law § 2292 (John T. McNaughton rev.1961)); Shaffer v. Am. Med.
Ass'n, 662 F.3d 439, 446 (7th Cir. 2011).
The work-product doctrine is distinct from the attorney-client privilege. Codified at
Fed.R.Civ.P. 26(b)(3), the work-product doctrine is designed to serve dual purposes: (1) to protect
an attorney's thought processes and mental impressions against disclosure; and (2) to limit the
circumstances in which attorneys may piggyback on the fact-finding investigation of their more
diligent counterparts. Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 621–22 (7th Cir.
2010); See also Hickman v. Taylor, 329 U.S. 495 (1947); Miller UK Ltd. v. Caterpillar, Inc., 17
F.Supp.3d 711 (N.D.Ill. 2014). As such, the doctrine protects from discovery documents and tangible
things that are prepared in anticipation of litigation or for trial by or for another party or its ... agent.”
Fed.R.Civ.P. 26(b)(3)(A); Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018, 1022 (7th Cir. 2012). As
with the attorney-client privilege, the burden is on the party asserting work-product protection to
show that a document was prepared in anticipation of litigation. “There is a distinction between
precautionary documents ‘developed in the ordinary course of business’ for the ‘remote prospect of
litigation’ and documents prepared because ‘some articulable claim, likely to lead to litigation, [has]
arisen.’” Sandra T.E., 600 F.3d at 622 (quoting Binks Mfg. Co. v. Nat'l Presto Indus., Inc., 709 F.2d
1109, 1120 (7th Cir.1983) (emphasis added) (alteration in original) (internal quotation marks
omitted). Only documents prepared in the latter circumstances receive work-product protection.
Sandra T.E., 600 F.3d at 622.
Even the most cursory perusal of the defendant’s privilege log shows that it fails to meet the
defendants’ burden of establishing the applicability of either the attorney-client privilege or the
work-product doctrine. Indeed, the defendants’ seeming indifference to the requirement of the
Federal Rules of Civil Procedure is striking. It is all the more striking, coming as it does, for a
company no doubt experienced in federal litigation. First of all, none of the authors or recipients of
the documents are identified. The lawyers at the defendant’s disposal – seven are currently on
appearance in this case – may have a familiarity with the jobs of the many people listed as authors
and recipients of the documents at issue; but the court obviously does not and it is the court which
must rule on privilege claims. Presumably, the plaintiff finds itself in the same position as does the
court. It would appear that for nearly all the documents at issue, an attorney was not the author or
among the recipients. That doesn’t necessarily scotch a claim of privilege or work product, but it
does raise red flags.
Moreover, in the corporate context, the attorney-client privilege extends only to an employee
who communicates with counsel at the direction of corporate superiors regarding matters within the
scope of the employee's duties for the purpose of securing legal advice. See Upjohn Co. v. United
States, 449 U.S. 383, 394 (1981). Communications going outside that boundary can waive the
privilege. See Acosta v. Target Corp., 281 F.R.D. 314, 323 (N.D. Ill. 2012). Accordingly, defendant
must produce a privilege log that identifies the capacities of each author and recipient at the time the
document was composed and distributed. See, e.g., Huntington Chase Condo. Ass'n v. Mid Century
Ins. Co., 2017 WL 440730, at *7 (N.D. Ill. Feb. 1, 2017); In re: Fluidmaster, Inc., 2016 WL
6599947, at *8 (N.D. Ill. Nov. 8, 2016); Yahnke v. Cty. of Kane, 2013 WL 4537865, at *6 (N.D. Ill.
Aug. 27, 2013); Pactiv Corp. v. Multisorb Techs., Inc., 2012 WL 1831517, at *2 (N.D. Ill. May 18,
Some entries have no date. The defendant must also provide a date for each document in the
privilege log. It would appear that some documents may have been prepared or received by
individuals who were not longer in the defendant’s employ at the time. Distribution of materials to
third parties outside the company would obviously, with rare exceptions, result in a waiver, see
Kirsch v. Brightstar Corp., 68 F.Supp. 3d 846, 853–54 (N.D. Ill. 2014), while documents authored
by employees no longer working for defendant would be unlikely to meet the requirement that
communication be at the direction of corporate superiors regarding matters within the scope of the
employee's duties for the purpose of securing legal advice. See Upjohn, 449 U.S. at 394. And
undated entries for which a claim of work product is asserted face an uphill battle, for obvious
That brings us to the defendant’s descriptions of withheld documents. Staying in the work
product category, a number of documents are said to be created in 2007 or 2008. This case was filed
in 2011 so, without more, the claim that litigation was anticipated based on an articulable claim three
or four years earlier must be viewed with a jaundiced eye. See Binks Mfg., 709 F.2d at 1118 (“The
mere fact that litigation does eventually ensue does not, by itself, cloak materials prepared by an
attorney with the protection of the work product privilege; the privilege is not that broad.”). Some
of these entries appear to be nothing more than a retention of documents at the request of an attorney;
sort of a hang-on-to-these-just-in-case request. That’s not an articulable claim; it’s a routine
Document descriptions like “reflecting request for legal advice” do not make out a claim of
attorney-client privilege. “Communications from attorney to client are privileged only if they
constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence.”
Judson Atkinson Candies, Inc. v. Latini Hohberger Dhimantec, 529 F.3d 371, 388 (7th Cir. 2008).
The question is whether legal advice or a client confidence is revealed.
Descriptions of documents entailing contract negotiations and invoices are similarly suspect.
A large part of attorney input in contract negotiations can be business, as opposed to legal advice.
Sandra T.E., 600 F.3d at 620 (counsel must be acting in their capacity as legal advisor to cloak
communication with the privilege); Burden-Meeks v. Welch, 319 F.3d 897, 899 (7th Cir.
2003)(business advice cannot be considered legal services). Documents dealing with invoices seem
even farther removed from the realm of client confidences and legal advice. Significantly, the
defendant’s executive on the project at issue stated in one of his emails that the role of in-house
counsel mentioned in nearly all of the document descriptions was “just to provide business advice
of a legal nature.” [Dkt. #228-16, at 3/15].
The plaintiff raises a number of other issues, such as subject matter waiver through
production of documents, and documents regarding “criminal activity” or “ethical violations” or
double billing.” See Shaffer v. Am. Med. Ass'n, 662 F.3d 439, 447 (7th Cir. 2011)(discussing the
crime-fraud exception to the privilege). Based on all these concerns, the plaintiff asks that the 2,150
documents in the defendant’s privilege log be ordered produced for an in camera inspection. But
that, is not a substitute for the log that is demanded by the plain language of the Federal Rules of
Civil Procedure.1 Nor can a court unfamiliar with the litigation be expected to discern documents
nearly a decade old. An in camera inspection is not a substitute for compliance with the Federal
Rules of Civil Procedure, nor is it a convenient vehicle that allows a shifting of the burden of
discovery from the parties and their lawyers to the court under the circumstances that now exist. A
court has discretion when and whether to conduct an in camera review. Slaven v. Great American
Insurance Co., 2015 WL 1247431, 8 (N.D.Ill.2015). Unlike American Nat. Bank & Trust Co. of
Chicago v. Equitable Life Assur. Soc. of U.S., 406 F.3d 867, 880 (7th Cir. 2005), there is nothing
manageable about the quantity of documents that the plaintiff is asking the court to review because
of the defendant’s claim of privilege – a claim which is alleged to be improper. Nor, at this juncture,
are we in a position to make a judgment about the correctness of the defendant’s claims.
The Federal Rules of Civil Procedure, which have the force of statutes, Beech Aircraft Corp. v.
Rainey, 488 U.S. 153, 163 (1988); Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc., 313
F.3d 385, 392 (7th Cir. 2002), cert. denied, 540 U.S. 1068 (2003), are to be accorded “their plain meaning.
. . and generally with them, as with a statute, ‘[w]hen we find the terms. . . unambiguous, judicial inquiry is
complete. . . .’” Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123 (1989).
Whether to conduct an in camera review involves an exercise of discretion. United States
v. Barrier Indus., Inc., 1997 WL 16668, at *2 (S.D.N.Y. 1997). We shall not excuse the filing of an
incomplete privilege log that does not comport with the mandatory requirements of the Federal Rules
of Civil Procedure. To do otherwise would be an unsound exercise of discretion – even if we had
the statutory authority to excuse what IBM has done thus far.
Whether an in camera inspection of the thousands of documents at issue will be conducted
by this court – or by a special master, which the Seventh Circuit has recognized we have authority
to retain where the documents cease to be manageable – that is where they do not number in the mere
hundreds, American Nat. Bank & Trust Co. of Chicago, 406 F.3d at 880 – the defendants are
required to reassess its claims of privilege and produce immediately a complete and adequate
privilege log. They must keep in mind that the inadequacies that are referred to are but examples;
they are not an exhaustive list of all deficiencies. If the defendant decides to maintain its claims as
to any documents, it must produce an amended privilege log that complies with and addresses the
types of concerns raised in this Opinion. As already noted, I have no familiarity with the actors and
actions that are discussed in the documents at issue and, without an adequate log to provide context,
even an in camera inspection would be futile.
Accordingly, the defendant is ordered to produce a privilege log that is fully compliant with
the Federal Rules of Civil Procedure and which will allow the parties to review the claims of
privilege in the log. The log must be produced within 10 days from today. The defendant should be
aware that the failure to produce an adequate log can, where appropriate, result in a waiver of the
privilege. Surgery Ctr. at 900 N. Michigan Ave., LLC v. Am. Physicians Assurance Corp., Inc., 317
F.R.D. 620, 631–32 (N.D. Ill. 2016). And as the defendant hopes to establish the applicability of the
privilege, it should bear in mind, in addition to its obligations to properly invoke and sustain the
privilege, the Seventh Circuit’s general advice to counsel: “An advocate's job is to make it easy for
the court to rule in his client's favor . . . .” Dal Pozzo v. Basic Mach. Co., 463 F.3d 609, 613 (7th Cir.
The plaintiff’s Motion to Compel IBM to Amend its Privilege Logs is granted and its Motion
to Provide Unredacted Documents to the Court for an In Camera Inspection is denied without
prejudice. At this juncture, we take no position on the plaintiff’s castigation of IBM at page 2 of its
Memorandum in Support of Motion to Compel [Dkt. #228 at 2] or its claims that IBM is attempting
to manipulate claims of privilege. It should be noted that neither unsupported claims of privilege nor
unfounded assertions of wrongdoing by either side will be tolerated in this case.
UNITED STATES MAGISTRATE JUDGE
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