Beverly et al v. Chicago State University Board of Trustees et al

Filing 122

MEMORANDUM Opinion and Order Signed by the Honorable Sheila M. Finnegan on 8/28/2015: Plaintiffs' Motion to Compel 101 is denied. [For further details see memorandum opinion and order.] Mailed notice. (is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PHILLIP BEVERLY and ROBERT
BIONAZ,
Plaintiffs,
v.
WAYNE D. WATSON, et al.,

Defendants.

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No. 14 C 4970
Judge Joan B. Gottschall
Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER
Plaintiffs Phillip Beverly and Robert Bionaz are associate professors at Chicago
State University (“CSU”). They helped to found, and frequently contribute to, a blog
titled CSU Faculty Voice, which aims to expose perceived mismanagement at the
university.

In this lawsuit, Plaintiffs charge the CSU Board of Trustees, as well as

President Wayne D. Watson, Vice President of Labor and Legal Affairs and General
Counsel Patrick Cage, and Associate General Counsel Janelle Carter, with trying to
silence Plaintiffs’ criticism of the CSU administration in violation of their First and
Fourteenth Amendment Rights under 42 U.S.C. § 1983. Plaintiffs seek a declaration
that CSU’s Computer Usage and Cyberbullying Policies are unconstitutional, a
permanent injunction prohibiting Defendants from further censoring Plaintiffs’ lawful
speech, and monetary damages.
In this motion, Plaintiffs object that Defendants have improperly invoked the
attorney-client privilege and/or the work product doctrine to justify withholding some 20
documents responsive to their discovery requests.

These include two internal

communications among CSU’s in-house counsel (IRE000727 and IRE000728), and
several draft documents prepared or reviewed by in-house counsel (IRE000805,
IRE000895, IRE001178, IRE001190, IRE001342, IRE001344, IRE003076, IRE003080,
IRE003081, IRE003082, IRE003085, IRE003089, IRE000951, IRE001157, IRE001606,
IRE001608, IRE003126, and IRE003162).
Plaintiffs express suspicion of what they characterize as Defendants’ “shifting
justifications” for the privilege designations, and argue that Defendants have “failed to
adequately support their claims for withholding” the cited materials. (Doc. 101, at 2).
To resolve the parties’ dispute, this Court has conducted an in camera review of the
documents in question. See, e.g., Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 426 U.S.
394, 405 (1976) (“[A]n in camera review of the documents is a relatively costless and
eminently worthwhile method to insure that the balance between petitioners’ claims of . .
. privilege and plaintiffs’ asserted need for the documents is correctly struck.”). Based
on that review, the Court finds that all of the documents are protected from disclosure
by either the work-product doctrine or the attorney-client privilege. Plaintiffs’ motion to
compel is therefore denied.
DISCUSSION
A.

Legal Framework
The attorney-client privilege protects “communications made in confidence by a

client and a client’s employees to an attorney, acting as an attorney, for the purpose of
obtaining legal advice.” Sandra T.E. v. South Berwyn Sch. Dist. 100, 600 F.3d 612, 618
(7th Cir. 2009). The privilege is intended to “encourage full and frank communication
between attorneys and their clients and thereby promote broader public interests in the

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observance of law and the administration of justice.” In re Sulfuric Acid Antitrust Litig.,
235 F.R.D. 407, 414 (N.D. Ill. 2006). Though the privilege generally applies only to
communications made by the client, “statements made by the lawyer to the client will be
protected where those communications rest on confidential information obtained from
the client, or where those communications would reveal the substance of a confidential
communication by the client.” Id. at 414-15.
Work product protection of documents sought during pretrial discovery is
governed by Federal Rule of Civil Procedure 26(b)(3).1 Under this rule, documents
prepared “in anticipation of litigation for the purpose of analyzing and preparing a
client’s case” are protected from disclosure. Sandra T.E., 600 F.3d at 618 (citing FED.
R. CIV. P. 26(b)(3)). The doctrine seeks to prevent a party from “invading the privacy of
an attorney’s course of preparation [which] is so well recognized and so essential to an
orderly working of our system of legal procedure.” Hollinger Int’l Inc. v. Hollinger Int’l,
230 F.R.D. 508, 511 (N.D. Ill. 2005) (quoting Hickman v. Taylor, 329 U.S. 495, 512
(1947)).
The protection afforded work product may be overcome if a party shows that it
has a “substantial need for the materials” and “cannot, without undue hardship, obtain
their substantial equivalent by other means.” FED. R. CIV. P. 26(b)(3)(A)(ii). But even if
a court orders discovery of work product based on such a showing, the court “must
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Since Rule 26(b)(3) applies only to pretrial discovery of documents and tangible things,
when work product protection is sought during trial or as to oral statements, courts must apply
the principles articulated in Hickman v. Taylor, 329 U.S. 495, 512 (1947). 2 EDNA SELAN
EPSTEIN, THE ATTORNEY-CLIENT PRIVILEGE AND THE W ORK-PRODUCT DOCTRINE 795 (5th ed.
2007). While that case focused on the protection of an attorney’s work product, Rule 26(b)(3)
protects materials prepared by a party’s representative other than the party’s attorney. Id. See
also FED. R. CIV. P. 26(b)(3)(A) (protecting work product “by or for another party or its
representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or
agent).”).

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protect against disclosure of the mental impressions, conclusions, opinions, or legal
theories of a party’s attorney or other representative concerning the litigation.” FED. R.
CIV. P. 26(b)(3)(B). In other words, a “far stronger showing” is necessary to discover
opinion work product than “ordinary” or “fact” work product consisting of “raw factual
information.” See Caremark, Inc. v. Affiliated Computer Servs., Inc., 195 F.R.D. 610,
616 (N.D. Ill. 2000). As with the attorney-client privilege, the party asserting the work
product doctrine bears the burden of showing that it applies.

Itex, Inc. v. Workrite

Uniform Co., No. 08 C 1224, 2011 WL 1224920, at *1 (N.D. Ill. Mar. 31, 2011).
B.

Analysis
Plaintiffs argue that Defendants’ have not met their burden of demonstrating that

the 20 withheld documents are in fact privileged. The Court considers each in turn.
1.

Emails Relating to Trademark/Tradename Infringement Claims

On November 11, 2013, Defendant Cage (as Vice President and General
Counsel of CSU) sent Plaintiff Beverly (as Publisher and Editor of the Faculty Voice
blog) a Cease and Desist letter accusing him of trademark infringement and trademark
dilution in connection with the blog. Plaintiffs’ prior counsel responded to that letter on
November 27, 2013 denying any wrongdoing and refusing to disable the blog. (Doc. 11, at 10-12). This prompted counsel for CSU to send a letter dated January 3, 2014
“expressly reserv[ing] all of [CSU’s] rights,” including the right to pursue litigation. (Doc.
1-1, at 14-15).
Defendants have asserted protection under the work-product doctrine and
attorney-client privilege over an email string dated February 20, 2014 between two of
CSU’s in-house attorneys, Defendant Carter and Robin Hawkins. Defendants state that

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the emails are a response to “concerns arising from Plaintiff’s improper use of CSU
trademarks/trade names and the potential for litigation related to the same.” (Doc. 114,
at 3). Since nothing in the emails reflects the lawyers’ mental processes or opinions,
the Court must determine whether the emails qualify as “fact” work product.

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threshold question in that regard is “whether the material sought to be protected from
discovery was prepared in anticipation of litigation.” Coltec Indus., Inc. v. American
Motorists Ins. Co., 197 F.R.D. 368, 371 (N.D. Ill. 2000).
As noted, Defendants have affirmed that the emails were prepared in anticipation
of a potential trademark lawsuit. Plaintiffs disagree, stressing that the emails are dated
“over four months before plaintiffs filed suit.” (Doc. 101, at 4). Yet it is well-established
that the work product doctrine may apply to documents created before litigation
commences, or even where no litigation ultimately ensues. Caremark, 195 F.R.D. at
614. The test is whether “the document can fairly be said to have been prepared or
obtained because of the prospect of litigation.” Binks Mfg. Co. v. National Presto Indus.,
Inc., 709 F.2d 1109, 1118-19 (7th Cir. 1983).
Here, Defendants certainly anticipated litigation with Plaintiffs in January 2014,
as evidenced by their counsel’s letter in that regard. The Court accepts Defendants’
representation that the February 2014 emails were drafted in connection with that
potential litigation and therefore constitute protected work product. Plaintiffs have not
demonstrated that they have a “substantial need” for the documents or that they would
suffer undue hardship in procuring the information some other way. The motion to
compel production of IRE000727-728 is denied.

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2.

Draft Documents Prepared or Reviewed by In-House Counsel

The remaining withheld documents are drafts of letters and memos prepared for
CSU administrators. All of these drafts were either written or reviewed by in-house
counsel to assess legal issues. For example, IRE000805 is a March 3, 2014 email from
in-house counsel Patrick Cage to President Watson’s Executive Assistant Binta
Chauncey attaching a draft letter with Cage’s proposed edits. This is an attorney-client
communication and need not be produced.

The same is true of the following

documents:
• IRE000895 – draft letter that in-house counsel Robin M. Hawkins sent to Chauncey
and Cage on March 10, 2014 with Hawkins’ suggested revisions.
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IRE001178 – draft letter prepared by in-house counsel Maria Mazza for a CSU

administrator, which she sent to Cage on April 29, 2014.
• IRE001190 – draft letter Hawkins sent to both David Kanis, Interim Dean of the
College of Arts and Sciences, and Cage on May 6, 2015, with Hawkins’ proposed
revisions.
• IRE001342 – draft memo Hawkins sent to Provost Angela Henderson, Chief Ethics
Officer Bernetta Bush, Esq., and Cage on June 18, 2014, with Hawkins’ proposed
revisions.
• IRE001344 – draft letter Kanis sent to Hawkins on June 2, 2014 (who then forwarded
it to Cage on June 18, 2014) seeking Hawkins’ legal advice.
• IRE003076 – draft letter Chauncey sent to Cage and President Watson on August 29,
2014, reflecting Cage’s suggested revisions.

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• IRE003080 – draft letter Chauncey sent on August 29, 2014 to Cage (who then
forwarded it to Mazza on September 2, 2014) for legal review.
• IRE003081 and IRE003082 – an email Cage sent himself on September 2, 2014,
attaching another copy of the draft letter at issue in IRE003080.
• IRE003085 – draft letter Chauncey sent to Cage for review on September 2, 2014,
copied to Bush, Henderson, President Watson, and Director of Intergovernmental
Affairs Farah Muscadin, Esq., incorporating changes Cage recommended.
• IRE003089 – draft letter Chauncey sent to Page on September 4, 2014, copied to
Muscadin and President Watson, for Page’s review.
• IRE000951 – draft memo President Watson sent to Cage in March 2014 for legal
review.
• IRE001157 – draft memo Kanis sent to Hawkins on Aril 25, 2014 for legal review.
• IRE001606 and IRE001607 – email from Mazza to Cage attaching draft letters Mazza
prepared for CSU administrators.
• IRE003126 – emails between Mazza, Cage, and Cage’s Executive Assistant Veronica
Scates regarding draft documents prepared by the Legal Department for a CSU
administrator.
• IRE003162 – draft letter prepared by CSU’s Legal Department for an administrator,
and sent from Cage to his Executive Assistant on November 12, 2014.
Plaintiffs do not raise any substantive challenges to Defendants’ assertion of the
attorney-client privilege.

Instead, they object to the fact that Defendants initially

asserted only work-product protection over several of these documents, then later
raised the attorney-client privilege in response to letters Plaintiffs sent challenging the

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work-product designation. (Doc. 101, at 4). Plaintiffs find the modifications suspicious
and believe that “defendants’ shifting privilege claims were contrived to impermissibly
continue withholding documents that should have been produced.” (Doc. 115, at 1). Of
course, Plaintiffs themselves invited the modifications by asking Defendants to take
another look at their privilege designations, and Federal Rule of Civil Procedure 26(e)
imposes an affirmative duty to timely supplement or correct any disclosures where a
“party learns that in some material respect the disclosure or response is incomplete or
incorrect.”
In any event, the Court is satisfied based on its in camera review that the
documents are protected by the attorney-client privilege. The Court also finds no merit
to Plaintiffs’ speculation that the documents may contain “non-party witness statements”
or results of an “internal investigation” that “may carry great probative value on
contested issues.” (Doc. 101, at 5; Doc. 115, at 3). Plaintiffs’ motion to compel the draft
letters and memos, and the associated emails described above is denied.
CONCLUSION
For the reasons stated above, Plaintiffs’ Motion to Compel (Doc. 101) is denied.
ENTER:

Dated: August 28, 2015

_____________________________
Sheila Finnegan

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