Lucas et al v. Gold Standard Baking, Inc., et al

Filing 464

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 8/8/2017. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRIAN LUCAS, ARONZO DAVIS, and
NORMAN GREEN, on behalf of
themselves and similarly situated
laborers,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
GOLD STANDARD BAKING, INC.,
)
PERSONNEL STAFFING GROUP, LLC )
d/b/a MVP,
)
)
Defendants.
)

No. 13 CV 1524

Magistrate Judge Young B. Kim

August 8, 2017

MEMORANDUM OPINION and ORDER
Before the court is Defendant Personnel Staffing Group, LLC d/b/a Most
Valuable Personnel’s (“MVP”) motion to compel third party witness Daisy Corral to
produce her retainer agreement with Plaintiffs’ attorney, Christopher Williams of
Workers’ Law Office, PC (“WLO”), and a contact form Corral submitted using
WLO’s website.1

For the following reasons, the motion is granted in part and

denied in part:
Background
Plaintiffs allege in this case that Defendants impermissibly denied them
employment because of their race.

(R. 322, Fifth Am. Compl. ¶ 1.)

MVP is a

staffing agency which “provides temporary labor personnel to third party clients,”

Corral has already produced a copy of the contact form to MVP, so the court will
limit its analysis to the retainer agreement entered into between Corral and WLO.

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including Defendant Gold Standard Baking, Inc. (“GSB”).

(R. 326, MVP’s Ans.

¶ 49.) Plaintiffs accuse GSB and MVP of “engaging in a discriminatory practice of
assigning almost exclusively Latino employees to work at [GSB],” to the detriment
of African American workers. (R. 322, Fifth Am. Compl. ¶ 71.)
Corral is a former employee of MVP, who was assigned to work at GSB from
July 2014 to December 2015. (R. 452, Corral’s Resp. at 1.) In August 2016, Corral
submitted a contact form through WLO’s website and asked to “speak to someone
regarding discrimination” at GSB. (Id.) Corral ultimately submitted a declaration
as a third-party witness in this case, (see R. 430, MVP’s Mot. to Compel ¶ 8), and
also retained WLO as her counsel in a separate suit against another entity, Elite
Staffing, for unpaid wages and vacation time, (R. 452, Corral’s Resp. at 3).
According to Corral, Elite Staffing now owns many of MVP’s assets and assumed
some of GSB’s contracts from MVP. (Id. at 3 n.2.)
On December 9, 2016, MVP issued a subpoena for Corral’s deposition in
connection with this case. (R. 452, Ex. B.) Her deposition was initially scheduled
for January 24, 2017. (Id., Ex. C.) However, MVP issued a second subpoena on
January 20, 2017, (see R. 456-1; R. 456-2), and contacted Corral’s counsel two days
later to reschedule her deposition, (see R. 452, Ex. D).

The second subpoena

requested that Corral not only appear for a deposition but also that she produce
certain documents relating to the allegations in this lawsuit.

(R. 456-3, Ex. C.)

Corral contends that she did not receive the second subpoena. (R. 452, Corral’s
Resp. at 5.)

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During her deposition on March 23, 2017, Corral testified that she executed a
retainer agreement with WLO. (R. 430, Ex. E at 362:16-18.) MVP requested that
she produce a copy of the agreement, and Corral’s counsel Williams said he would
consider MVP’s request. (Id. at 365:19-23.) When it became clear that Corral would
not be producing the agreement, MVP filed the current motion to compel. (See
R. 456, MVP’s Reply at 3.) About a week after MVP filed its motion, Williams sent
MVP’s counsel an email containing the date of the Corral retainer agreement and
an excerpt from the agreement pertaining to the scope of WLO’s representation of
Corral. (R. 452, Ex. E.) However, MVP argues that it is still entitled to the full
retainer agreement because: (1) Corral did not timely object to the document
request attached to her subpoena; and (2) the retainer agreement is relevant and
not privileged. (R. 456, MVP’s Reply at 1-2.) Alternatively, MVP contends that it is
at least entitled to a redacted copy of the retainer agreement so that it can be used
for cross-examination purposes. (Id. at 4.)
Analysis
A.

Failure to Timely Object
Federal law provides the rules of decision in this case, so the discovery issues

currently before the court are governed by federal common law. See Fed. R. Evid.
501; In re Pebsworth, 705 F.2d 261, 262 (7th Cir. 1983) (stating that in non-diversity
actions, privileges are matters of federal common law).

Federal Rule of Civil

Procedure 45 requires written objections to subpoenas to be served within 14 days
after the service of the subpoena. Fed. R. Civ. P. 45(d)(2)(B). Failure to timely

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object to a subpoena can result in waiving any objections the party could have
raised. See Kronenberg v. Baker & McKenzie LLP, 747 F. Supp. 2d 983, 996 (N.D.
Ill. 2010) (citation omitted).

Corral claims that she did not receive the second

subpoena requesting documents, which is why she did not object within 14 days.
(See R. 452, Corral’s Resp. at 2 n.1.) However, MVP has submitted documentation
showing that the second subpoena was properly served.

(R. 456, MVP’s Reply,

Exs. A & B.) Corral objected to the subpoena on the basis of relevance and privilege
for the first time in her response to MVP’s current motion to compel, which was
filed well after the allotted 14-day timeframe. Rule 45(e) specifies that when a
person withholds subpoenaed material based on a claim of privilege, that person
must expressly make the claim and prepare a privilege log. See Fed. R. Civ. P.
45(e)(2)(A)(i); Young v. City of Chi., No. 13 CV 5651, 2017 WL 25170, at *6 (N.D. Ill.
Jan. 3, 2017) (citations omitted).

Corral failed to timely meet either of these

requirements.
Despite the untimeliness of Corral’s objection, because she is a third-party
witness in this case, the court owes her a greater duty of protection. See Patterson
v. Burge, No. 03 CV 4433, 2005 WL 43240, at *1 (N.D. Ill. Jan. 6, 2005) (requiring
greater protection for non-parties); Builders Ass’n of Greater Chi. v. City of Chi., No.
96 CV 1122, 2001 WL 664453, at *7 n.4 (N.D. Ill. June 12, 2001). Furthermore,
finding a waiver of privilege for procedural violations “is a harsh sanction.” Romary
Assocs., Inc. v. Kibbi LLC, No. 10 CV 376, 2011 WL 4005346, at *3 (N.D. Ind. Sept.
8, 2011) (citations omitted). Waiver “may only be imposed where a party displays

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willfulness, bad faith, or fault.” Am. Nat’l Bank & Trust Co. v. Equitable Life Assur.
Soc’y of U.S., 406 F.3d 867, 877 (7th Cir. 2005) (quoting Langley v. Union Elec. Co.,
107 F.3d 510, 514 (7th Cir. 1997)). Good-faith efforts to comply generally weigh
against finding waiver while “evidence of foot-dragging or a cavalier attitude
towards following court orders and the discovery rules supports finding waiver.”
Romary Assocs., 2011 WL 4005346, at *3 (quoting Ritacca v. Abbott Labs., 203
F.R.D. 332, 335 (N.D. Ill. 2001)).
There is little evidence here to suggest that Corral acted in bad faith. The
parties were corresponding before and after the second subpoena was issued. (See
R. 452, Exs. C & D); see also Miller v. City of Plymouth, No. 09 CV 205, 2011 WL
1740154, at *2 (N.D. Ind. May 5, 2011) (declining to impose waiver sanction in part
based on “ongoing correspondence . . . from the time the discovery was served to the
time the responses were served and filed”). It also appears that Corral has made
efforts to comply, at least in part, with MVP’s request by providing a copy of the
requested online contact form and excerpts from the subject retainer agreement.
(See R. 452, Corral’s Resp. at 4 & Ex. E.) Also, MVP does not contend in its motion
that it has been prejudiced from any delay in obtaining the information it seeks, nor
does it argue that Corral intentionally dragged her feet.

See Young, 2017 WL

25170, at *7. Accordingly, the court declines to find Corral’s privilege objections
waived.

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B.

Attorney-Client Privilege and Relevance
Having found no waiver of privilege, the court next considers whether

privilege applies to the subject retainer agreement and whether the information
therein is relevant. Rule 26 only allows a party to “obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ.
P. 26(b)(1).

Generally, retainer agreements are not protected by attorney-client

privilege. See Stopka v. Am. Family Mut. Ins. Co., Inc., 816 F. Supp. 2d 516, 532-33
(N.D. Ill. 2011). But if the retainer agreement contains legal advice or strategy, it
can be held to include privileged information. See Smithkline Beecham Corp. v.
Apotex Corp., 193 F.R.D. 530, 537 (N.D. Ill. 2000). Implicit in Rule 45 is that a
subpoena must seek information that is relevant to the underlying action. See Pac.
Century Int’l. Ltd. v. Does 1-37, 282 F.R.D. 189, 200 (N.D. Ill. 2012). MVP contends
that Corral is “a witness heavily relied on in this case” and the connection between
Corral and Williams, who also represents Plaintiffs in this case, is “highly relevant”
for “how it impacts her credibility, motives, and bias.” (R. 456, MVP’s Reply at 5.)
Having reviewed the Corral retainer agreement in camera, the court finds
that the paragraph regarding the scope of representation in the retainer agreement,
as well as the agreement date, are relevant to this case, but the rest of the retainer
agreement is either privileged because it includes prosecution strategy not related
to this case or not relevant to the claims or defenses alleged in this case. Although
WLO provided MVP an email reflecting the date of her retainer agreement and an
excerpt defining the scope of WLO’s representation, this email is not suitable to

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serve as an exhibit because Corral is not familiar with the email and does not show
her signature. The retainer agreement in its original form must be provided to
MVP with other sections of the agreement redacted.
Conclusion
For the foregoing reasons, MVP’s motion to compel is granted in part and
denied in part.

The motion is granted to the extent that Corral is ordered to

produce to MVP a copy of the retainer agreement in its original form, showing only
the date of the agreement, the section entitled “Retainer and Authorization,” and
her signature. The motion is denied as to the remainder of the agreement.
ENTER:
____________________________________
Young B. Kim
United States Magistrate Judge

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