The Manitowoc Company, Inc. v. Kachmer

Filing 144

MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 8/26/2016. Mailed notice. (dm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THE MANITOWOC COMPANY, INC.,
Plaintiff,
v.
MICHAEL J. KACHMER, et al.,
Defendants.

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No. 14 C 09271
Judge John Z. Lee
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Plaintiff The Manitowoc Company, Inc. (“Manitowoc”) has sued Defendants Michael J.
Kachmer (“Kachmer”), Craig Reuther (“Reuther”), and Christopher Brisch (“Brisch”)
(collectively, “Defendants”) for breach of contract. Manitowoc asserts that Defendants breached
their post-employment, non-solicitation and/or non-disclosure obligations contained within
various agreements agreed to by the parties. As a result of Defendants’ conduct, Manitowoc
alleges that it lost employees and valuable confidential and/or proprietary information and
documents and incurred costs associated therewith. The case is before this Court on
Manitowoc’s motion to compel the production of a spreadsheet generated by Reuther (the
“Reuther Spreadsheet”) allegedly containing information regarding the misappropriated
documents at issue in this litigation.1 For the reasons set forth below, the Court denies
Manitowoc’s motion to compel [dkt. 133].

1

Manitowoc directs its motion to compel to all named defendants and seeks its relief cloaked in the same
collective terms. (See, e.g., Dkt. 133, p. 1 (moving the Court to compel “Defendants, Michael J. Kachmer, Craig
Reuther, and Christopher Brisch (collectively, ‘Defendants’) to produce [the Reuther Spreadsheet]”) and Dkt. 135,
p. 15 (requesting “an order compelling Defendants to produce the Reuther Spreadsheet” (emphasis added).) For
their part, Defendants respond as a single unitary interest. (See, e.g., Dkt. 140, p. 12 (“Defendants request that this
Honorable Court deny Manitowc’s motion to compel ….”) (emphasis added).) Obviously Manitowoc cannot seek
the production of records a defendant does not possess, nor can it compel one defendant to answer an interrogatory

Background
Manitowoc seeks discovery of the Reuther Spreadsheet, a document Reuther prepared at
the specific direction of his counsel and in direct response to the onset of this litigation. (Dkt.
140, pp. 2, 10.) Reuther provided the Reuther Spreadsheet to this Court for in camera review.
As set forth in further detail below, the document has 35 rows (one for each document it
addresses) and five columns. The columns bucket information by (1) document number; (2) the
title of each document; (3) a description of each document; (4) the nature, if any, of Reuther’s
use of each document; and (5) Reuther’s theory of why each document was not confidential.
At issue is the information sought by Interrogatory Nos. 10, 11, and 12. Manitowoc
asserts that Reuther has failed or refused to produce substantive information in discovery
responses “regarding the Manitowoc documents he took, sent, requested, received,
misappropriated, used, and/or had in his possession, and what he did with each such document.”
(Dkt. 135, p. 1.) Specifically, Manitowoc hones in on Interrogatory Nos. 10, 11, and 12, which it
believes cover the entire universe of allegedly misappropriated documents that form the basis of
this lawsuit. (Dkt. 135, p. 2-6; dkt. 141, p. 4 (asserting that Interrogatory Nos. 10, 11, and 12
collectively address the entire universe of documents Reuther may have misappropriated).)
Manitowoc argues that “the Reuther Spreadsheet is the only comprehensive source containing all
the information Manitowoc requested.” (Dkt. 141, p. 4-5.)
Understandably, Manitowoc is keenly interested in the contents of the Reuther
Spreadsheet. The Court’s review of the document, however, reveals that certain portions are

on behalf of a different defendant. We therefore presume the parties’ respective use of “defendants” was simply an
oversight and treat Manitowoc’s motion to compel as directed solely to Reuther, and not to Kachmer or Brisch.
Likewise, we treat Defendants’ Response In Opposition to Manitowoc’s Motion to Compel, (Dkt. 140), as a defense
solely on Reuther’s behalf. Should any party find this approach erroneous, the Court invites it to promptly file a
pleading further elaborating on its objection.

2

privileged as attorney-client communications and other portions constitute the party’s work
product. Accordingly, the privileged portions and aspects protected under the work product
doctrine are shielded from discovery.
Reuther argued in his submissions, (see, e.g., dkt. 140, pp. 2, 9) and at oral argument, that
he produced any non-privileged information in his responses to Manitowoc’s interrogatories and
other discovery. The Court agrees and therefore does not require Reuther to produce the
unprivileged duplicative information and finds no compelling need that would justify the
production of the otherwise protected information. See Jackson v. City of Chi., No. 03 C 8289,
2006 WL 2224052, at *4 (N.D. Ill. July 31, 2006) (distinguishing between fact and opinion work
product and explaining “a party may obtain discovery of ordinary work product only upon a
showing of substantial need for the work product and proof of undue hardship if forced to obtain
the requested work product in some other way.”) (citing Logan v. Comm. Union Ins. Co., 96 F.3d
971, 976 (7th Cir. 1996)).
Manitowoc correctly asserts that Reuther may not shroud from discovery otherwise
discoverable information by simply inserting such information in a communication to counsel.
The parties’ briefs, oral argument, and, in particular, the Court’s in camera review of the Reuther
Spreadsheet reveal that Reuther has not sought to protect from disclosure underlying facts at
issue in the litigation. To the contrary, Reuther indeed already produced (albeit in a different
form) the information Manitowoc doggedly seeks. The Court finds that Reuther has produced all
discoverable facts contained within the Reuther Spreadsheet, and Reuther only seeks to protect
his own work product (prepared subsequent to Manitowoc’s initiation of this lawsuit) and
communications made in confidence to counsel in relation to the pending litigation. In sum,

3

Manitowoc has already received all of the discovery to which it is entitled, and the Court
therefore denies Manitowoc’s Motion to Compel for the reasons stated herein.
Discussion
A.

Timing of the Motion to Compel
The Court first addresses the timeliness of Manitowoc’s motion to compel. Reuther

argues that Manitowoc inexcusably delayed in filing its motion to compel and the Court should
outright deny the motion as untimely. (Dkt. 140, pp. 10-11.) The district court set the close of
fact discovery for April 6, 2016. (Dkt. 120.) Expert discovery closed on June 24, 2016. (See
dkt. 101 (setting June 24, 2016 due date for deposition of rebuttal experts).) Manitowoc filed
this motion to compel on July 12, 2016. (Dkt. 133.)
Reuther points to this District’s decision in Fast Food Gourmet, Inc. v. Little Lady Foods,
Inc., No. 05 C6022, 2007 WL 1673563, at *3 (N.D. Ill. June 8, 2007) (motions to compel filed
after the close of discovery not untimely where accompanied by reasonable and persuasive
justification for delay) and the Seventh Circuit’s opinion in Rossetto v. Pabst Brewing Company
Co., 217 F.3d 539, 542 (7th Cir. 2000) (upholding denial of untimely motion to compel filed two
months after close of discovery without justification for tardiness). Despite fact discovery
closing prior to the filing of the motion to compel, (see Dkt. 120 (setting close of fact discovery
for April 6, 2016)), Manitowoc persuasively distinguishes this case from other contexts in which
a motion to compel filed late in the game might upend the case’s briefing schedule, place an
undue burden on the opposing party, or force the Court to reopen discovery. (See dkt. 141, pp.
9-10.) Unlike Rossetto, the Court, in exercising its discretion, finds no need to deny the motion
on timeliness grounds to “expedite the litigation and spare the parties the expense of protracted
discovery, the bane of modern litigation.” 217 F.3d 539 at 542. Rather, the Court agrees that this

4

motion implicates a discrete and manageable question of production that directly bears on the
heart of the litigation, and by resolving the issue on the merits, we further the truth-seeking
function of the litigation. See Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir.
2002) (“Before restricting discovery, the court should consider ‘the totality of the circumstances,
weighing the value of the material sought against the burden of providing it,’ and taking into
account society’s interest in furthering ‘the truthseeking function’ in the particular case before
the court.”) (internal citation omitted).
The Court also notes Manitowoc’s assertion that Reuther failed to disclose the existence
of the Reuther Spreadsheet in a timely fashion. (Dkt. 141, p. 2.) Manitowoc took Reuther’s
deposition on January 26, 2016, at which time Manitowoc’s counsel specifically demanded the
Reuther Spreadsheet. (Id. at 2-3.; dkt. 135, p. 5.) Reuther’s counsel responded by submitting a
privilege log for the Reuther Spreadsheet on February 1, 2016. (Dkt. 140, Ex. A; see dkt. 135, p.
5.) Under these circumstances, we believe all parties acted reasonably in both requesting the
Reuther Spreadsheet and subsequently responding to that request.
B.

Nature of the Reuther Spreadsheet and Initial Observations
The Reuther Spreadsheet bears no title beyond “Attorney Client Privilege.” It contains

five categories of information pertaining to 35 documents at issue in the litigation. The five
categories of information are set forth in columns entitled (1) “No.”; (2) “Document Title”; (3)
“Document Description”; (4) “How did I use it”; and (5) “Why [sic] felt it was not confidential
information.”
The titles are self-explanatory. The first category provides nothing more than a list
numbering the documents 1-35, and the second category only provides a document title. The
“Document Description” column sets out a brief overview of the background and nature of the

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document, the purpose for which Manitowoc used the document and, in some cases, a notation of
the individual or company that created the document (or type of document), and that the
document was superseded. Next, the “How did I use it” category describes the nature of
Reuther’s use of the document (if any). Finally, the “Why [sic] felt it was not confidential
information” category sets forth, as one might imagine, Reuther’s theory for why the documents
should not be considered confidential.
The Court has subject matter jurisdiction on the basis of diversity of the parties. It is well
settled that Federal Rule of Civil Procedure 26(b)(3) codifies the work product doctrine, and the
Court applies federal law to issues implicating the doctrine. 2 EDNA SELAN EPSTEIN, THE
ATTORNEY-CLIENT PRIVILEGE AND THE WORK-PRODUCT DOCTRINE 804 (American Bar
Association, eds., 5th ed., Vol II. 2007); Abbott Labs v. Alpha Therapeutic Corp., 200 F.R.D.
401, 405 (N.D. Ill. 2001) (“Claims of privilege under the attorney work product doctrine are . . .
governed solely by federal law.”).
Conversely, Federal Rule of Evidence 501 commands that “state law governs privilege
regarding a claim . . . for which state law supplies the rule of decision.” Because federal
jurisdiction exists based on diversity of the parties, state law supplies the controlling law. Both
parties brief the issue applying Illinois law as controlling, so we likewise apply Illinois law.
(See, e.g., dkt. 135, pp. 8-10 (citing federal and Illinois case law and setting forth the Seventh
Circuit and Illinois state court test for analyzing attorney-client privilege); dkt. 140, pp. 7-9

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Perhaps the well-settled nature of this issue suggested to the parties that any discussion of the issue was
unnecessary.

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(citing federal and Illinois case law and defining attorney-client privilege pursuant to Illinois
law).) 3
C.

Attorney-Client Privilege and Work Product Determination
Not surprisingly, the parties have starkly divergent views as to whether the Reuther

Spreadsheet is privileged. Manitowoc, on the one hand, asserts that the Reuther Spreadsheet is
not subject to the attorney-client privilege, nor does it garner protection as “attorney work
product.” (Dkt. 135, p. 10.) 4 Reuther, on the other hand, predictably opposes both assertions,
claiming both attorney-client privilege and work product protection. (Dkt. 140, pp. 7-9, 9-10.)
1.

Attorney-Client Privilege

Manitowoc argues that the Reuther Spreadsheet “is not a communication between
Reuther and his counsel and therefore does not even fall within the potential purview of the
attorney-client privilege.” (Dkt. 135, p. 9 (emphasis in original).) Understandably, Manitowoc
operates at a knowledge deficit due to its inability to review the document in question.
Manitowoc correctly presumes that portions of the spreadsheet do not contain communications
as defined for purposes of attorney-client privilege. Rather, certain columns of the Reuther
Spreadsheet merely summarize factual information. See, e.g., Lexecon, Inc. v. Milberg Weiss
Bershad Specthrie & Lerach, No. 92 C 7768, 1993 WL 179789, at *7, n. 2 (N.D. Ill. May 24,
1993) (“Defendants may be arguing simply that any communications from one lawyer to another
concerning the case or from a lawyer to a client are privileged. If so, they are in error . . . . If a
communication by a client is not revealed by a document, then the document is not protected by
the attorney-client privilege”) (internal citations omitted); Heriot v. Byrne, 257 F.R.D. 645, 656
3

The agreements at issue as they pertain to Reuther provide that Wisconsin law will govern. (Dkt. 73, Ex. B
¶ 14, Ex. C ¶ 9.) Despite this declaration, Manitowoc, presumably the drafter of the agreement, cites to Illinois law.
Reuther follows suit. Thus, we, too, will apply Illinois law.
4
As set forth in further detail infra, Manitowoc uses the nomenclature “attorney work product,” a misnomer
that leads it astray in its argument.

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(N.D. Ill. 2009) (“Of course, not all communications between the attorney and the client are
privileged. The privilege adheres ‘only if [the communications] constitute legal advice, or tend
to directly or indirectly reveal the substance of a client confidence.’”) (internal citations and
quotation marks omitted); Allen v. Chi. Transit Auth., 198 F.R.D. 495, 499 (N.D. Ill. 2001) (“Not
all information transmitted to an attorney becomes cloaked with the privilege . . . . In the end, []
the question is: does the document in question reveal, directly or indirectly, the substance of a
confidential attorney-client communication.”) (citing United States v. Lawless, 709 F.2d 485,
487 (7th Cir.1983) and Ohio–Sealy Mattress Mfg. Co. v. Kaplan, 90 F.R.D. 21, 28 (N.D.
Ill.1980)).
Two categories of the Reuther Spreadsheet, however, clearly contain attorney-client
communications.5 The columns entitled “How did I use it” and “Why [sic] felt it was not
confidential information” straightforwardly evince communications from Reuther to counsel
narrating information for the purpose of obtaining legal advice. Accordingly, the privilege bars
Manitowoc from viewing the last two columns of the spreadsheet.
Though prohibited from obtaining the Reuther Spreadsheet, Manitowoc may gather the
underlying factual information via another means. The Supreme Court held in Upjohn v. U.S.:
5

Manitowoc argues “[a]s a threshold matter, the Reuther spreadsheet is not a communication between
Reuther and his counsel.” (Dkt. 135, p. 9.) Manitowoc looks to Cangelosi v. Capasso, 851 N.E.2d 954, 957-58 (Ill.
App. 2006) for support. Cangelosi is unavailing as it involves notes prepared by a litigant before a lawsuit had been
filed and before an attorney-client relationship was in existence. Id. at 955, 958 (stating the notes were authored
within a day of the events, prior to any litigation, and were not turned over to an attorney for 22 months and
therefore concluding the notes were primarily factual statements and not directed to an attorney). The instant case
presents diametrically opposite conditions as to the litigation’s timing and existence of attorney-client relationship.
Reuther generated the document after Manitowoc filed suit and at the specific instruction of retained counsel.
Additionally, we note that the form of communication to counsel is not controlling in determining whether the
information conveyed is a “communication.” See, e.g., Midwesco-Paschen Joint Venture for Viking Projects v. Imo
Indus., Inc., 638 N.E.2d 322, 329 (Ill. App. 1994) (handwritten note to counsel considered protected
communication); see also In re Sulfuric Acid Antitrust Litig., 235 F.R.D. 407, 431 (N.D. Ill. 2006), supplemented,
432 F. Supp. 2d 794 (N.D. Ill. 2006) (“The achievement of [the goal of the attorney-client privilege] obviously is not
a function of the form either the client’s communications or the lawyer’s responses may take. As the Supreme Court
has said in another context, ‘[i]t is the substance of what they do, and not the form in which they clothe their
transactions, which must afford the test.’”) (alteration in original) (internal citation omitted).

8

[T]he protection of the privilege extends only to communications and not to facts. A fact
is one thing and a communication concerning that fact is an entirely different thing. The
client cannot be compelled to answer the question, ‘What did you say to your attorney?,’
but may not refuse to disclose any relevant fact within his knowledge merely because he
incorporated a statement of such fact into his communication to his attorney.
449 U.S. 383, 395-96 (1981) (citing Phila. v. Westinghouse Ele. Corp., 205 F. Supp. 830, 831
(E.D. Pa. 1962)) (emphasis in original). Indeed, Manitowoc’s Interrogatory No. 15 appears to
discern this information. (See dkt. 140, Ex. C (containing Interrogatory No. 15, listing the
documents contained in the Reuther Spreadsheet, asking whether Reuther knew of contractual
nondisclosure obligations of employees from whom he requested documents, and seeking
purpose for which Reuther requested and used documents).) Reuther appears to have fully
answered Interrogatory No. 15.
In its reply, Manitowoc argues that “Defendants erroneously assert that their discovery
burden has been fulfilled through incomplete responses to other, irrelevant Interrogatories and/or
Requests for Production of documents not at issue herein.” (Dkt. 141, p. 3.) Manitowoc
specifically challenges Reuther’s position that “the Spreadsheet is not the only source containing
the information Manitowoc seeks” and, in particular, objects to Reuther’s argument that
Interrogatory No. 15 identifies 35 confidential documents and answers why he requested the
documents and the purpose for which he used the documents. (Id.) Understandably, Manitowoc
questions whether Interrogatory No. 15 addresses the entire universe of documents set forth in
the Reuther Spreadsheet because that interrogatory “does not ask about the entire universe of
documents Reuther may have misappropriated.” (Id. at 4 (stating Defendants themselves point
out Interrogatory No. 15 asks about only 35 specific documents and Interrogatory Nos. 10, 11,
and 12 collectively ask about the entire universe of documents Reuther may have
misappropriated)) (emphasis added). The Court’s review of the Reuther Spreadsheet shows that

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the documents listed 1-35 in Interrogatory No. 15 mirror identically the 35 documents housed
within the Reuther Spreadsheet and, in fact, are even presented in the same order.6 Reuther
additionally addresses each of the 35 documents in his response to Interrogatory No. 15 or other
interrogatory responses attached as an exhibit to Reuther’s response brief.7
Thus, Reuther objects to producing the spreadsheet but does not attempt to conceal from
disclosure underlying factual information by the cloak of privilege. To do so would raise wholly
different concerns. See Upjohn Co., 449 U.S. 383 at 395 (“The [attorney-client] privilege only
protects disclosure of communications; it does not protect disclosure of the underlying facts by
those who communicated with the attorney . . . .”). For these reasons, we find that the two
columns entitled “How did I use it,” and “Why [sic] felt it was not confidential information” are
attorney-client communications entitled to privilege protection.
2.

Work Product Doctrine

The columns entitled “Document Title” and “Document Description” expectedly contain
the names of the documents and their corresponding descriptions. In his deposition, Reuther
accurately states the Reuther Spreadsheet’s purpose was “Just to lay out all of the documents that
6

The wording is not literally identical, but the differences are so minute that the document titles in
Interrogatory No. 15 and the Reuther Spreadsheet obviously refer to the same documents. In order to be abundantly
clear that Reuther has not unlawfully shielded information, the following discrepancies exist between the documents
as listed by Manitowoc’s interrogatory and as listed by the Reuther Spreadsheet: (11) “FSG Operations’ April 2014
financial information, including sales, profits, and earnings” versus “FSG Operations’ April 2014 financial
information”; (16) Manitowoc Foodservice Operating Policy for Outside Consultants and Contractors – Global”
versus “Manitowoc Foodservice Operating Policy for Outside Consultants”; (23) “Appendix 2 to Manitowoc
Operating Policy 29 Restructuring Activities – Reserve Roll Forward” versus “Appendix 2 to Manitowoc Operating
Policy 28 Restructuring Activities – Roll Forward” (Reuther’s response to Interrogatory No. 15 indicates that “28” is
a typographical error and should be “29”); and (35) “Plant Controller Job Posting” versus “Plan Controller Job
Posting” (from the interrogatory response, it appears that “Plant” is a typographical error and should be “Plan”).
This list ignores the following discrepancies: capitalization, punctuation, pluralization, and possessive use of
“Manitowoc.” (See dkt. 140, Ex. C, p. 3.)
7
An analysis of Interrogatory No. 15 suffices to show Manitowoc has received in discovery the factual
contents within the Reuther Spreadsheet with the exception that Reuther’s response does not refer to “(13)
Manitowoc Foodservice 2015 Business Plan Review.” In his response to Interrogatory No. 23, however, Reuther
addresses that document asserting that the document is not confidential, and that he understood the Manitowoc
employees who sent this (and other) documents to have authority to do so. (Dkt. 140, Ex. C, p. 12-13.) Finally, the
Court points out that interrogatories other than No. 15 further address documents within the spreadsheet. (See,
generally, Dkt. 140, Ex. C.)

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I had received that were included in the complaint against me” and explain “What I used them
for.” (Dkt. 140, Ex. B, p. 6, Reuther Dep. Trans. 14:9-13.) Reuther further affirms that the
spreadsheet contained all of the documents that came into his possession—everything contained
in the amended complaint. (Dkt. 140, Ex. B, p. 7, Reuther Dep. Trans. 15:3-6.)
Manitowoc’s legal arguments against Reuther’s assertion of work product protection
erroneously commingle dated case law with more current statutory references. Federal Rule of
Civil Procedure 26(b)(3)(A) codifies the doctrine and extends work product protection to
“documents and tangible things that are prepared in anticipation of litigation or for trial by or for
another party or its representative (including the other party's attorney, consultant, surety,
indemnitor, insurer, or agent).” (emphasis added). On its face, the Rule clearly includes within
its scope documents prepared by a party. Yet, Manitowoc, in its briefing and at oral argument,
asserts that work product protection only reaches the work product of counsel. (See, e.g., dkt.
135, p. 10 (Stating “[t]he work product doctrine is intended to protect an attorney’s written
materials and mental impressions” and calling the doctrine the “attorney work product doctrine”)
(emphasis added); id. at 11 (“Reuther’s counsel did not draft the Spreadsheet, and it therefore
simply cannot contain any of counsel’s mental impressions.”).) Manitowoc’s limitation of the
work product doctrine to attorneys only fatally undermines its position.8
Protection afforded by the work product doctrine extends to documents prepared by a
party irrespective of the absence of counsel’s involvement in the documents’ generation. In re
Bank One Sec. Litig., First Chi. S'holder Claims, 209 F.R.D. 418, 425 (N.D. Ill. 2002) (“The

8

Manitowoc’s brief suffers from internal inconsistency and therefore by its terms concedes its limitation of
the doctrine to attorney work product is improper. For example, in other instances, Manitowoc correctly states that
“[the work product doctrine] protects documents prepared by or for a party.” (Dkt. 135, p. 10.) Further, despite the
erroneous nomenclature, “attorney work product doctrine,” Manitowoc goes on to state that the core of the doctrine
“is to protect ‘the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other
representative concerning the litigation.” (Dkt. 135, p. 10. (citing Fed. R. Civ. P. 26(b)(3)(B)) (emphasis added).

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work-product doctrine extends beyond the attorney to documents prepared by a party’s
representative or agent.”) (internal citation omitted). “The test to determine whether materials
were prepared in anticipation of litigation is ‘whether, in light of the nature of the document and
the factual situation in the particular case, the document can fairly be said to have been prepared
or obtained because of the prospect of litigation.” Id. (citing Binks Mfg. Co. v. National Presto
Indus., Inc., 709 F.2d 1109, 1119 (7th Cir. 1983)). Here, no doubt exists as to whether Reuther
can meet this test. Reuther constructed the spreadsheet both at the specific instruction of counsel
and in direct response to Manitowoc filing suit against him. (Dkt. 140, p. 10; see also id. Ex. B,
p. 6-7, Reuther Dep. Trans. 14:6-25, 15:1-9.) The Court’s in camera review of the document’s
contents corroborates Reuther’s briefing and attached deposition testimony.
Significantly, as we understand the issue, Reuther does not argue that he may withhold
otherwise discoverable underlying factual information. Rather, he seeks exclusively to protect
the Reuther Spreadsheet from production. See Jumper v. Yellow Corp., 176 F.R.D. 282, 287
(N.D. Ill. 1997) (“It is well established that the work product doctrine does not protect discovery
of the underlying facts of a dispute.”); Vardon Golf Co. v. Karsten Mfg. Corp., 213 F.R.D. 528,
534 (N.D. Ill. 2003) (“Although documents and tangibles created by the representative in
anticipation on [sic] litigation are protected, the underlying facts may be subject to disclosure in
ordinary discovery if they are non-privileged.”); see also Appleton Papers, Inc. v. E.P.A., 702
F.3d 1018, 1023 (7th Cir. 2012) (rejecting argument that factual material underlying the
document is not protected because Rule 26 “protects all ‘documents and tangible things that are
prepared in advance of litigation.’”) (emphasis in original).
For these reasons, the “Document Description” category containing Reuther’s personally
generated overviews of the documents (and aggregation and organization thereof) is entitled to

12

work product protection.9 We note that the “Document Title” column arguably may not obtain
protection, but Reuther already provided all of these titles in his answers to Manitowoc’s
interrogatories. Reuther need not duplicate that production. Accordingly, the entirety of the
Reuther Spreadsheet is shielded from production.
D.

Extraordinary Relief Pursuant to Federal Rule of Civil Procedure 26
Manitowoc argues that even if the spreadsheet is entitled to work product protection, it

would “suffer undue hardship to obtain the substantial equivalent of the materials by other
means,” and therefore, this Court should order production. (Dkt.135, p. 11 (citing Fed. R. Civ. P.
26(b)(3)(A)).) We disagree. As set forth above, Manitowoc received the full scope of the
information to which it is entitled. This information is contained in defendant’s answer to
Interrogatory No. 15 and other interrogatories. See Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600
F.3d 612, 622 (7th Cir. 2010) (work product doctrine limits circumstances in which attorneys
may piggyback on the fact-finding investigation of their counterparts); Appleton Papers, Inc.,
702 F.3d 1018 at 1024-25 (work product doctrine “advances the adversarial system by providing
incentives to collect information and thoroughly prepare for litigation); see also supra, n. 6
(detailing minor differences between spreadsheet and Interrogatory No. 15). Manitowoc cites to
no supporting law for its “substantial need” argument pursuant to Federal Rule Civil Procedure
26(b)(3)(A). (See Dkt. 135, pp. 11-13.) Considering all of the circumstances presented here, we
are confident that Manitowoc is not entitled to the Reuther spreadsheet because it has failed to
demonstrate a substantial need for the same.10 See Netherlands Ins. Co. v. Nat’l Cas., 283

9

The categories of the Reuther Spreadsheet evaluated in the Court’s attorney-client privilege analysis above
are not addressed by this section because the Court deems them subject to the more robust protection of the attorneyclient privilege. The lack of inclusion should in no way be construed as meaning that those categories could not
obtain work product protection if a reviewing court did not find them privileged attorney-client communications.
10
We note that Rule 26’s “substantial need” exception applies to work product protected material. Any
“substantial need” argument that might apply to the portions of the Reuther spreadsheet that contain attorney-client
communications would be governed by state law. Again, Manitowoc presents no case law that would support its

13

F.R.D. 412, 419 (C.D. Ill. 2012) (substantial need for privileged material not established because
information obtainable by other means); United States v. Dish Network, LLC, 283 F.R.D. 420,
427 (C.D. Ill. 2012) (moving party failed to establish “undue hardship” under Rule 26 when
moving party had obtained “substantially equivalent material by other means”).
E.

Waiver of Protection
Finally, Manitowoc creatively argues that Reuther waived any protection afforded the

spreadsheet by using it to refresh his memory prior to the deposition. Manitowoc correctly
asserts that the use of a privileged document to refresh a witness’s recollection can lead to the
waiver of both work product and attorney-client communication. Federal Rule of Evidence 612
controls this blended evidentiary and discovery issue and applies to depositions via Federal Rule
of Civil Procedure 30(c). Timm v. Mead Corp., No. 91 C 5648, 1992 WL 32280, at *4 (N.D. Ill.
Feb. 7, 1992). Crucially, however, Rule 612 relies heavily on the Court’s discretion in
determining whether to order a party to produce otherwise privileged documents. United States
E.E.O.C. v. Continental Airlines, 395 F. Supp. 2d 738, 744 (N.D. Ill. 2005) (discussing courts’
considerable discretion in deciding whether a writing must be produced when a witness reviews
a document prior to testifying) (emphasis added).
As a threshold matter, we observe that it is not clear that Reuther used the spreadsheet to
refresh his recollection in the manner Federal Rule of Evidence 612 contemplates that concept.
While Reuther openly acknowledged that he ‘reviewed’ the spreadsheet prior to his deposition
(see dkt. 135, pp. 4-5), Manitowoc makes no showing that Reuther’s memory was ever
exhausted such that Reuther needed the spreadsheet to “refresh” his compromised memory. See
Constand v. Cosby, 232 F.R.D. 494, 500 (E.D. Pa. 2006) (stating that a deponent must testify in
argument as to the attorney-client communications. See, e.g., Sann v. Mastrian, 280 F.R.D. 437, 439-440 (S.D. Ind.
2011) (noting that Rule 26 applies to work product analysis while controlling state law applies to privilege issues).

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her own words and explaining that a deponent refreshes her recollection when her memory is
exhausted, then refers to the document, and subsequently continues her testimony in her own
words based on her refreshed recollection). While Reuther does raise this issue, albeit it in
somewhat tepid terms, (dkt. 140, p. 5), we do not engage in a full analysis of Rule 612’s
applicability in this scenario. Suffice to say, we are not confident that a witness’s “review” of a
document in the standard course of preparation for a deposition even implicates Rule 612. At the
very least, this form of usage distinguishes it from the case law Manitowoc cites and raises
sufficient ambiguity to weigh against a finding of waiver.
To resolve this matter, we also look to Rule 612’s directive that disclosure of a document
used to refresh a witness’s memory in advance of her testimony is appropriate “if the court
decides that justice requires the [requesting] party” to have the document available. Fed. R.
Evid. 612(a)(2). The foregoing sections of this opinion make abundantly clear that, even absent
disclosure of the Reuther Spreadsheet, Manitowoc will not suffer any inability to obtain
identifying information regarding the documents that Reuther has in possession. Rather, Reuther
provided this information in his answer to Interrogatory No. 15 (and answers to other
interrogatories). (See Dkt. 140, Ex. C.) And, Manitowoc fails to identify any compelling need
for the attorney-client privileged information contained in the Reuther spreadsheet. We therefore
do not find that “justice requires” the production of the Reuther spreadsheet. Fed. R. Evid.
612(a)(2).
Manitowoc cites a number of cases in support of its waiver argument. (Dkt. 135, pp. 1315.) None of these is on point. In each of the cases cited, a significant distinguishing factor
renders the case inapposite. First, in Bailey v. Meister Brau, Inc., the deponent used the
protected documents at issue “to refresh his recollection at his deposition.” 57 F.R.D. 11, 12

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(N.D. Ill. 1972) (emphasis added). By contrast, Manitowoc never established Reuther’s actual
reliance on the spreadsheet to refresh his recollection and fails to cite any evidence suggesting
that Reuther used the spreadsheet during the deposition for any purpose at all. Thus, the
pragmatic underpinning of Rule 612—to allow effective cross-examination—is not at play here.
Manitowoc’s other cited cases are equally unavailing. In In re Fedex Ground Package
Systems., Inc., Employment Practices Litigation the deponents, like Reuther, reviewed the
document at issue prior to the deposition. 2007 WL 733753, at *9 (N.D. Ind. 2007). Unlike
Reuther, however, both deponents appeared to be reviewing the document at issue at the
beginning of each deposition and “indicated to [the opposing party] that they had reviewed the
documents prior to the commencement of the deposition to refresh their recollection.” Id.
(emphasis added). The opinion then states that, when asked if the document refreshed his
recollection, one of the deponents “answered an unambiguous ‘yes.’” Id. (emphasis added). The
Fedex court thus distinguished this from cases where a deponent merely glances at some
documents to refresh her recollection and found disclosure appropriate pursuant to Federal Rule
of Evidence 612. Accordingly, the Fedex case fails to support a finding of waiver.
Finally, Wheeling-Pittsburgh Steel Corp. v. Underwriters Laboratories, Inc., 81 F.R.D. 8
(N.D. Ill. 1978) similarly fails to support Manitowoc’s position. The Wheeling court relied
heavily on the above distinguished Bailey case. See id. at 10 (“We find the [] discussion in
Bailey concerning waiver of attorney-client privilege to be particularly germane” to this Rule
612 analysis). The Wheeling opinion notes (as we note above) that, in Bailey, the deponent
waived privilege when he used the documents to refresh his recollection at the deposition. Id.
(emphasis added).

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The case is further distinguishable on policy grounds. The Wheeling court discussed two
policy concerns: (1) the “unfair disadvantage which could be placed upon the cross-examiner by
the simple expedient of using only privileged writings to refresh recollection”; and (2) the need
to search out discrepancies between the writing and the testimony. Id. Here, Manitowoc faces
no such disadvantage and needs not search out discrepancies because, as set forth above, Reuther
provided the information sought in his answers to Manitowoc’s interrogatories.
The timing and nonessential nature of Reuther’s usage of the Reuther Spreadsheet
distinguish this case from those cited in Manitowoc’s submissions. Moreover, Manitowoc
already received access to the information to which it is entitled. We therefore conclude that
justice does not require waiver of Reuther’s privilege and the production of the Reuther
Spreadsheet.
Conclusion
For the reasons set forth above, Reuther is not required to produce the Reuther
Spreadsheet, and Manitowoc’s motion to compel [dkt. 133] is denied.
SO ORDERED.

ENTERED: August, 26 2016

________________________
M. David Weisman
United States Magistrate Judge

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