Breuder v. Board of Trustees of Community College District No. 502, DuPage County, Illinois et al

Filing 483

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cummings on 9/9/2021. (ma,)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT BREUDER,
Plaintiff,
v.
BOARD OF TRUSTEES OF
COMMUNITY COLLEGE DISTRICT
NO. 502, et al.,
Defendants.

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No. 15 CV 9323
Judge Andrea R. Wood
Magistrate Judge Jeffrey I. Cummings

MEMORANDUM OPINION AND ORDER
For the reasons set forth below, plaintiff Robert Breuder’s motion to compel defendants
Kathy Hamilton and the Board of Trustees of Community College District No. 502 (the “Board”)
to produce withheld communications involving Christopher Robling (Dckt. #370) is granted in
part and denied without prejudice in part.
I.

BACKGROUND
A.

Procedural Background

Plaintiff, who served as the President of the College of DuPage (the “College”) from
2009 until his termination in October 2015, brings this lawsuit against the Board 1 and former
Board members, Kathy Hamilton, Deanne Mazzochi, Frank Napolitano, and Charles Bernstein,
alleging claims concerning §1983 due process violations, breach of contract, defamation, and
civil conspiracy. Certain defendants have, in turn, filed counterclaims against Breuder alleging
breach of contract, breach of fiduciary duty, and conversion.

1

Generally speaking, the Court refers to defendant as “the Board,” but when describing individuals,
events, and facts related to the College as an entity might refer to “the College.” At times, the two are
used interchangeably.

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Before the Court is Breuder’s motion to compel defendant Hamilton and the Board to
produce withheld communications involving Christopher Robling. (Dckt. #370). In short, and
as explained in significant detail below, Robling is a public relations consultant who provided
services to both Hamilton and the Board in 2014 and 2015. Defendant Hamilton has asserted the
attorney-client privilege over twenty-four e-mails involving Robling and the Board has asserted
the attorney-client privilege over 550 records involving Robling. 2 In the instant motion, Breuder
argues, for various reasons, that the attorney-client privilege does not extend to the withheld
Robling communications with respect to Hamilton or the Board. 3 For their part, Hamilton and
the Board dispute Breuder’s assertion of facts regarding Robling’s roles and continue to assert
the privilege over the documents at issue.
B.

Robling’s Relationship With Hamilton

Robling is a public relations and communications consultant. In August 2014, defendant
Hamilton (then a College Board member) executed an agreement in her individual capacity with
Robling’s consulting company, Clearspan Strategic LLC (“Clearspan”), effective August 4, 2014

2

The twenty-four e-mails withheld by Hamilton were transmitted between August 25, 2014 and March 4,
2015 and are highlighted on a copy of Hamilton’s second amended privilege log attached as Exhibit 1 to
Breuder’s brief. (Dckt. #371-1.) The Board’s withheld documents are reflected in various versions of the
Board’s privilege log, but plaintiff has conveniently segregated the documents into a separate log attached
as Exhibit 2 to his brief. (Dckt. #374.) Plaintiff counted 558 documents and the Board counted 556
documents.
3

Breuder apparently disputes the Board’s work product assertion over 17 documents as well but does not
provide any argument on this point. (Dckt. #371 at 3, n.2). Accordingly, the Court makes no finding as
to the Board’s work product designations and presumes those designations were made in good faith.
Plaintiff also disputes whether “the withheld Robling communications relate to truly privileged matters,”
as opposed to “non-privileged political and public relations advice.” (Id. at 3, n.3.) However, as Breuder
acknowledges, that argument overlaps with issues raised in Breuder’s separate motion to compel
regarding the Board’s privilege log. (Dckt. #420). The Court will address that motion and the issues
therein by separate order in due course. As such, this order relates solely to whether the attorney-client
privilege even extends to Robling given his various roles with Hamilton and the Board and not whether
the communications at issue meet the definition of privileged information.

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to December 31, 2014 (hereinafter, the “Agreement”). (Dckt. #375.) Under the terms of the
Agreement, Clearspan – and in turn Robling – agreed to provide Hamilton with the following
services: (1) a communications plan, to be agreed to by Hamilton and Clearspan; (2) written
material that identifies Hamilton and her volunteer civil work; (3) introductions to press covering
post-secondary education in Chicagoland; and (4) communications consultation. (Dckt. #375 at
1.) Robling further agreed to “maintain ongoing communications with Ms. Hamilton” and
“report on activities to achieve goals of the agreed-to communications plan regularly.” (Id.) In
exchange for these services, Hamilton agreed to pay Robling $2,500 a month. (Id.)
Robling has submitted an affidavit providing further details about his work for Hamilton
and the Board. (Dckt. #371-3.) According to Robling, Hamilton retained his firm in August
2014 “to work with her to provide crisis counseling regarding concerns she had detected about
the College of DuPage,” such as the “fraud uncovered at the College radio station, the lack of
controls in place to prevent or readily detect that fraud; waste in the spending at auxiliary
enterprises like the Waterleaf; [and] abuse in the awarding of contracts to ‘insiders’ who were on
the College’s Foundation Board…” (Id. at 2.) Hamilton and Robling apparently agreed that “the
administration and her fellow trustees were attempting to silence her by censuring her for asking
pointed questions and raising concerns about practices at the College.” (Id.) Given this
landscape, Robling states that he worked with Hamilton “throughout the Fall of 2014 as she
became a whistleblower” concerning financial and management issues at the College. (Id.)
Specifically, Robling maintains that he provided Hamilton with communications advice,
strategic planning, tactical assistance, and “litigation consultation (in conjunction with
counsel).” 4 (Id.) At his deposition in Hamilton’s 2017 divorce proceedings, Robling provided a
4

Though Robling states that he “studied law at Northwestern University School of Law,” no party has
asserted that he is a licensed attorney or that he himself provided legal advice to Hamilton or to the Board.

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similar description of his duties while working for Hamilton. (See Dckt. #371-5 at 11-14 &
#371-6 at 3-6 (describing his duties in assisting Hamilton with crisis and reputation
management); Dckt. #386-3 (describing his initial conversations with Hamilton).)
Hamilton also explained the circumstances surrounding Robling’s hiring and the services
he provided in her deposition testimony during her divorce proceedings. According to
Hamilton’s testimony, Robling helped her “navigate” through the “crisis [she] was in” by
identifying and delivering the message she needed to get out to the people of DuPage County.
(Dckt. #386-2 at 5-7.) She also testified that Robling helped protect her reputation and her
family’s reputation in the face of the Board’s censure and “lies.” (Id.) Robling worked for
Hamilton from April 2014 through December 2015. 5 Hamilton continued to compensate
Robling throughout 2015, either directly or indirectly through payments to his son’s university
for tuition and other costs. (See Dckt. #371-5 at 29-34, 64-67 & #371-6 at 154-55.)
C.

Robling’s Relationship With The Board

According to his affidavit, in “late 2014 or early 2015,” Robling contends that he
“voluntarily” began to assist Hamilton “as she helped the Clean Slate candidates – Frank
Napolitano, Charles Bernstein, and Deanne Mazzochi – as they sought to become trustees of the
College.” (Dckt. #371-3 at 2-3.) Though Robling provided communications advice and strategic
planning, he describes himself as “one of many volunteers,” as opposed to their campaign
manager. (Id. at 3.)
After Napolitano, Bernstein, and Mazzochi were elected to the Board in early April 2015,
Robling states that he “assisted in the preparation for the first Board meeting” which took place

5

Although the written Agreement between Hamilton and Robling extended only through December 31,
2014, Robling testified in his deposition during the divorce proceedings that he had a “contract in fact”
with Hamilton after that date. (Dckt. #371-5 at 25.)

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on April 30, 2015. 6 (Id.) It was at this meeting that the Board appointed Hamilton as Chairman,
placed then-President Breuder on administrative leave, and appointed Joe Collins as acting
Interim President. (See April 30, 2015 Organizational Bd. Meeting Minutes, available at
https://www.cod.edu/about/board_of_trustees/pdf-docs/minutes/2015april30min_org.pdf and
April 30, 2015 Special Bd. Meeting Minutes, available at
https://www.cod.edu/about/board_of_trustees/pdf-docs/minutes/2015apr30_spcl.pdf.)
Robling states generally that he “worked for the college from approximately April 2015
through mid-December 2015.” (Dckt. #371-3 at 3.) However, the College’s employment
records show that it was actually on May 21, 2015 that the College hired Robling as a part-time,
temporary (not to exceed one year) employee as the “Assistant to the President [Joe Collins] for
Institutional and Transition Affairs.” (Dckt. #371-7 & #371-8.) The stated function of the
position was to assist the president and Board regarding institutional and transitional affairs and
the duties included “participate on and provide counsel to COD Transition Team;” work with
Board of Trustees as appropriate; and “other duties as assigned.” (Dckt. #371-9 at 2.) The
College agreed to pay Robling $455 per week, which Robling donated back to the College of
DuPage Foundation. (Dckt. #371-6 at 153-54 & #371-14.)
According to Robling, during the time of his employment, the College was “in crisis” for
multiple reasons: namely, the grand jury investigations surrounding Breuder, state legislative
demands for audits, an audit by the Higher Learning Commission (“HLC”) (the College’s
accrediting body), and the ongoing frustration of the public and negative media attention. (Dckt.
#371-3 at 3.) Robling explains that this “confluence of events” touched on government relations,

Robling stated that the meeting took place “on or about April 28, 2015,” but records reveal the date was
April 30, 2015.

6

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media relations, alleged malfeasance and legal issues, all of which he had dealt with many times
in his career as a consultant. (Id.)
Robling states that his responsibilities at the College involved helping the Board and
senior leadership with strategic planning about the ongoing investigations, potential reforms,
transition issues, relationships with the legislature, the presidential search, employment decisions
made by the College, and media communications concerning all of these issues. (Id. at 3-4.)
Robling states that he worked closely with interim President Collins, members of the Board, and
outside counsel, and that “the senior management team and the Board sought [his] advice and
relied upon [his] recommendations when making key decisions.” (Id. at 4.) Robling explains
that “[i]n many instances, counsel participated in the discussions of which [he] was a part
because the College was seeking the legal advice of counsel and/or wanted to make sure that the
College was considering the legal implications of events as they were occurring.” (Id. at 5.)
Breuder, for his part, paints a far different picture of the role that Robling played with the
College. In particular, he maintains that Hamilton directed Interim President Collins to create a
sham position and to hire Robling so that he could continue his role as Hamilton’s political and
public relations advisor while ostensibly serving as a College employee. In support, Breuder
attaches the report of the accrediting body, the HLC, from its July 2015 Advisory visit to the
College. (Dckt #371-10.) According to interviews conducted by the HLC, Hamilton (1)
“instructed [Collins] to hire an employee to report to the Acting Interim President,” (2) told
Collins “to hire a particular individual, Chris Robling;” and (3) further advised Collins that the
“employee would work for [Hamilton].” (Dckt. #371-10 at 30-31.)
Notwithstanding the parties’ dispute regarding the nature of Robling’s role with the
College, it is undisputed that Robling continued providing various services to Hamilton as

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outlined in their Agreement during his employment with the College in 2015 and that Hamilton
(as detailed above) continued to compensate Robling for the services he performed for her.
Ultimately, on December 13, 2015, Hamilton resigned from the Board citing “personal reasons.”
(Dckt. #371-13.) Two days later, Robling sent a resignation e-mail to President Collins ending
his “temporary part time” position with the College. (Dckt. #371-14.)
II.

ANALYSIS
Breuder vehemently disputes Hamilton’s and the Board’s assertions of the attorney-client

privilege over communications that include Robling. With respect to Hamilton, Breuder argues
that Hamilton’s privilege does not extend to her public relations consultant Robling because she
has not shown how Robling’s participation in her communications with counsel was necessary to
facilitate legal advice. As for the Board, Breuder argues that Robling should not be considered
an employee of the College for purposes of the attorney-client privilege because he was, in fact,
not a College employee prior to May 21, 2015 and that, thereafter, he was an employee in name
only while truly working for Hamilton. Alternatively, even if the Court finds that Robling was
an employee, Breuder argues that the Board has failed to satisfy the applicable “subject matter”
test that would extend the Board’s privilege to the communications to which Robling was a
party. The Court addresses each of these distinct issues in turn.
A.

Legal Standard

The parties agree that federal law applies to the privilege issues before the Court. See,
e.g., Andersen v. City of Chicago, No. 16 C 1963, 2019 WL 423144, at *2 (N.D.Ill. Feb. 4, 2019)
(“Federal common law governs any privilege determination in this federal question suit…even
though the complaint contains supplemental state law claims.”). It is also agreed that the
attorney-client privilege applies: (1) where legal advice of any kind is sought; (2) from a

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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 [the client’s] instance permanently
protected; (7) from disclosure by himself or by the legal adviser; (8) except the protection be
waived. United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983); United States v. White, 970
F.2d 328, 334 (7th Cir. 1992); Sullivan v. Alcatel-Lucent USA, Inc., No. 12 C 7528, 2013 WL
2637936, at *2 (N.D.Ill. June 12, 2013). “Whether the privilege exists is a fact intensive inquiry
. . . , and cannot be solved by simply looking to the identity of the sender or recipient of the
communication.” Motorola Sols., Inc. v. Hytera Commc’ns. Corp., 17 C 1973, 2018 WL
1804350, at *4 (N.D.Ill. Apr. 17, 2018) (citation omitted).
The purpose of the attorney-client privilege “is to encourage full and frank
communication between attorneys and their clients and thereby promote broader public interests
in the observance of law and the administration of justice.” McCullough v. Fraternal Ord. of
Police, Chicago Lodge 7, 304 F.R.D. 232, 236 (N.D.Ill. 2014). Because “the privilege is in
derogation of the search for truth,” it is narrowly construed and applies “only where necessary to
achieve its purpose.” United States v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007)
(internal quotations and citations omitted); Lawless, 709 F.2d at 487 (scope of the privilege
should be “strictly confined within the narrowest possible limits”). The party asserting the
attorney-client privilege has the burden of establishing all essential elements of the privilege and
that it has not been waived. Lawless, 109 F.2d at 487; Square D Co. v. E.I. Elecs., Inc., 264
F.R.D. 385, 390 (N.D.Ill. 2009).
B.

Hamilton Has Waived Her Attorney-Client Privilege Over The E-Mail
Communications Involving Robling.

Hamilton has withheld twenty-four e-mail communications with her attorneys (Dan
Kinsella and/or Aldo Botti) that also include third-party Robling because, according to Hamilton,
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the attorney-client privilege extends to Robling in his capacity as her agent/PR consultant. The
twenty-four e-mail communications fall into four categories: (1) fourteen e-mails that were sent
by Hamilton to counsel with Robling included as an additional recipient; (2) four e-mails that
were sent by counsel to Hamilton with Robling included as an additional recipient; (3) four emails that were sent by Robling to counsel with Hamilton included as an additional recipient;
and (4) two e-mails that were sent by Robling to counsel, period. 7
For the reasons stated below, the Court respectfully disagrees with Hamilton’s contention
and finds that she has waived any attorney-client privilege that otherwise may have existed over
these twenty-four e-mail communications.
“It is clearly established black letter law that a party waives the attorney-client privilege
when the otherwise privileged documents are disclosed to a third party.” In re Dealer Mgmt.
Sys. Antitrust Litig., 335 F.R.D. 510, 514 (N.D.Ill. 2020) (internal quotation and citation
omitted); Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007) (“[O]rdinarily, statements made
by a client to his attorney in the presence of a third party do not fall within the privilege, even
when the client wishes the communication to remain confidential”); Burden-Meeks v. Welch, 319
F.3d 897, 899 (7th Cir. 2003) (“Knowing disclosure to a third party almost invariably surrenders
the privilege with respect to the world at large; selective disclosure is not an option”).
“However, there is an exception to the general rule that the presence of a third party will defeat a

The Court notes that Hamilton has failed to make any argument as to how the two emails in the latter
category that were exchanged between Robling and counsel but did not include Hamilton herself satisfy
the test for being covered by the attorney-client privilege in the first instance. See, e.g., Pemberton v.
Republic Services, Inc., 308 F.R.D. 195, 202 (E.D.Mo. 2015) (communications with public relations
consultant not privileged because none of the documents “actually involved communications directly
between counsel and client” and “were not communications made between a client and its counsel made
in confidence for the purpose of obtaining legal advice”). Nonetheless, for purposes of this motion, the
Court will presume that these emails are covered by Hamilton’s attorney-client privilege in the first
instance.
7

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claim of privilege when that third party is present to assist the attorney in rendering legal
services” though, as the Seventh Circuit has noted, “the presence of the third person is normally
unnecessary for communication between the client and h[er] attorney.” Jenkins, 487 F.3d at
490-91; In re Dealer Mgmt. Sys. Antitrust Litig., 335 F.R.D. at 517.
Accordingly, to avoid waiver here, Hamilton – regardless of her subjective intent not to
waive the privilege – must show that “statements made to [her] attorney[s] in the presence of
[Robling,] a third party non-lawyer” were “necessary to the obtaining or giving of legal advice.”
Motorola Sols., Inc., 2018 WL 1804350, at *4; Heriot v. Byrne, 257 F.R.D. 645, 666 (N.D.Ill.
2009) (“[T]he attorney-client privilege should be limited to instances where a third party . . .
assists a lawyer in giving legal advice, and where the third party’s participation was required to
enable the attorney to render legal advice.”) (internal quotations and citations omitted). In
particular, the third party’s presence must be “‘necessary to clarify, facilitate, or improve an
attorney’s comprehension of the facts on which a legal opinion will be given or a client’s
comprehension of the attorney’s opinion,’ so that the client could ‘obtain informed legal
advice.’” Flo Pac, LLC v. NuTech, LLC, No. WDQ-09-510, 2010 WL 5125447, at *8 (D.Md.
Dec. 9, 2010), quoting Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product
Doctrine, at 264 (5th ed. 2007). 8 The involvement of the third party must be “nearly
indispensable” or “serve some specialized purpose in facilitating the attorney-client

8

The Flo Pac court elaborated on this point stating that “[a] third party’s presence is ‘necessary’ when
‘some arcane information must be transmitted,’ and the third party acts ‘as an interpreter’ of a language,
be the language verbal or technical.” Flo Pac, 2010 WL 5125447, at *8, quoting Epstein, supra, at 264;
see also Universal Standard Inc. v. Target Corp., 331 F.R.D. 80, 87 (S.D.N.Y. 2019) (“waiver is not
found where the presence of a third party is needed to allow the client to communicate information to an
attorney, such as where a translator is used or where an accountant supplies specialized knowledge to
allow an attorney to understand the client’s situation”).

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communications.” Id.; Dublin Eye Assocs., P.C. v. Massachusetts Mut. Life Ins. Co., No. 5:11CV-128-KSF, 2013 WL 653541, at *8 (E.D.Ky. Feb. 2, 2013).
The Seventh Circuit has recognized that the exception to the third-party waiver rule
“applies both to agents of the attorney, such as paralegals, investigators, secretaries and members
of the office staff responsible for transmitting messages between the attorney and client, and to
outside experts engaged to assist the attorney in providing legal services to the client, such as
accountants, interpreters or polygraph examiners.” Jenkins, 487 F.3d at 491 (internal quotation
marks omitted); Pogorzelska v. VanderCook Coll. of Music, No. 19 C 5683, 2021 WL 2660268,
at *3 (N.D.Ill. June 29, 2021) (same, quoting Jenkins). This exception covers retained experts
“when the expert assists the attorney by transmitting or interpreting client communications to the
attorney or formulating opinions for the lawyer based on the client’s communications.” Jenkins,
487 F.3d at 491.
In this instance, Hamilton states that she retained Robling “for crisis management to
protect her good reputation due to the hostile then Board of Trustees’ censure of her with a pack
of lies” and to identify and deliver the appropriate “message” to the people of DuPage County.
(Dckt. #386 at 5 (citing Dckt. #386-2 & #386-3).) In light of this role, Hamilton maintains that
Robling’s inclusion in her communications with counsel was “needed to understand first-hand
the legal consequences of their actions and in dealing with the hostile Board of Trustees and Dr.
Breuder, and the press” and “to ensure that [Hamilton and Robling]…did not violate the censure
or any law or COD policy” in their crisis management process. (Dckt. #386 at 8, 9). Hamilton
further asserts in her brief – without elaboration or citation to any evidence – that the fact that
she has dyslexia required Robling’s presence. (Dckt. #386 at 6, 9). Even accepting these

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assertions as true, they fall far short of establishing that the attorney-client communications that
Hamilton shared with Robling fit within the exception to the third-party disclosure waiver rule.
The question is not whether Robling’s presence enhanced the benefit that counsel’s legal
advice provided to Hamilton or whether Robling himself obtained a benefit from the legal
advice. Instead, the pertinent inquiry is whether Robling was nearly indispensable because he:
(1) provided Hamilton’s counsel with the expertise necessary to assist counsel in rendering legal
advice; or (2) was necessary to facilitate communications between Hamilton and her counsel.
See Woodard v. Victory Recs., Inc., No. 11 CV 7594, 2013 WL 5951768, at *7 (N.D.Ill. Nov. 7,
2013) (finding no evidence demonstrating that third-party consultant provided the client’s
counsel “with expertise necessary to assist counsel in rendering legal advice” and there was
“nothing to suggest that [the consultant’s] involvement was critical to the [client’s] attorneys’
ability to advise the [client]”); Universal Standard, 331 F.R.D. at 88 (emails involving public
relations firm not privileged where firm was not “essential” to the communications and “did not
serve to improve counsel’s understanding of [plaintiff’s] request for legal advice”); Pemberton v.
Republic Servs., Inc., 308 F.R.D. 195, 202 (E.D.Mo. 2015) (declining to find communications
involving a public relations consultant privileged where “it does not appear that defense counsel
was reliant on [the consultant’s] expertise in order to give appropriate legal advice to
Defendants”); Egiazaryan v. Zalmayev, 290 F.R.D. 421, 431 (S.D.N.Y. 2013) (“the necessity
element means more than just useful and convenient, but rather requires that the involvement of
the third party be nearly indispensable or serve some specialized purpose in facilitating the
attorney-client communications” and holding that client’s privilege was waived regarding
communications involving public relations consultant because the consultant failed to meet this
standard) (internal quotation marks omitted).

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As in most cases involving public relations consultants, there is no indication here that
Robling provided Hamilton’s counsel with any expertise that was necessary to enable counsel to
provide legal advice to her. 9 See, e.g., In re New York Renu with Moistureloc Product Liability
Litigation, No. CA 2:06-MN-77777-DCN, 2008 WL 2338552, at *11 (D.S.C. May 8, 2008)
(holding that party failed to satisfy its burden of showing that a public relations firm was
“necessary” to legal representation when firm did not provide “anything other than ordinary
public relations advice”); LifeVantage Corp. v. Domingo, No. 2:13-CV-01037-DB-PMW, 2015
WL 5714426, at *2 (D.Utah Sept. 29, 2015) (“Courts have widely rejected claims of attorneyclient privilege or work-product protection over communications with public relations firms”)
(citing multiple cases); DRFP, LLC v. Republica Bolivariana de Venezuela, No. 2:04-CV-793,
2015 WL 6122988, at *2 (S.D.Ohio Oct. 19, 2015) (“Venezuela has consistently maintained that
disclosure of otherwise privileged documents to a public relations firm is a waiver of the
privilege. That is generally true”) (citing cases). Moreover, any suggestion that Robling was
necessary to enable counsel to provide legal advice to Hamilton is dispelled by the fact that he is
included on only twenty-four out of hundreds of Hamilton’s attorney-client communications –
including some which relate to the same topics as the communications involving Robling. 10 (See
generally Dckt. #386.)
Without such a showing of necessity, it is not enough that Robling’s involvement in the communications
between Hamilton and her counsel may have provided value to Robling and Hamilton or even that
Robling’s input may have been helpful to counsel “in formulating legal strategy.” Calvin Klein
Trademark Tr. v. Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000).
9

10

For example, Robling was included on some communications related to electioneering, COD financials,
and the Open Meetings Act, but was excluded from other communications involving the same topics.
(See e.g., REV0003430, REV0004606, REV0069786, REV0069787, REV0069788 (excluding Robling
from electioneering e-mails); REV0005331, REV0005338, REV0014925, REV0014926, REV0014946
(excluding Robling from “COD Financials” e-mails); REV0003044, REV0032573, REV0032581,
REV0039163 (excluding Robling from Open Meetings Act e-mails).)

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This evidence that there were hundreds of communications between Hamilton and her
counsel without Robling likewise dispels the notion that Robling’s presence was necessary to
facilitate communications from Hamilton to her counsel. See Egiazaryan, 290 F.R.D. at 433
(finding that any attorney-client privilege waived by disclosure of communications to public
relations firm where there was no showing that the firm’s involvement was “necessary to
facilitate communications” between the client and its counsel); Calvin Klein, 198 F.R.D. at 54–
55 (communications between client, counsel and public relations consultant not privileged where
PR firm served “to assist counsel in assessing the probable public reaction to various strategic
alternatives, as opposed to enabling counsel to understand aspects of the client’s own
communications that could not otherwise be appreciated in the rendering of legal advice”).
Finally, while the Court is sympathetic to the fact that Hamilton suffers from dyslexia,
she has not provided any clarity as to how the condition necessitated Robling’s involvement with
her counsel. In particular, Hamilton has failed to explain why or how her dyslexia impacted her
ability to communicate with counsel such that Robling was needed to “enabl[e] counsel to
understand aspects of [her] own communications that could not otherwise be appreciated in the
rendering of legal advice.” Calvin Klein, 198 F.R.D. at 55. To the contrary, the fact that
Hamilton was able to communicate with counsel on hundreds of occasions without Robling’s
involvement demonstrates that his presence was not necessary to overcome any adverse effects
created by Hamilton’s dyslexia.
For all of these reasons, Hamilton has failed to satisfy her burden of showing that her
attorney-client privilege over communications including her public relations consultant Robling
has not been waived. Square D Co., 264 F.R.D. at 390. Accordingly, Breuder’s motion to

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compel is granted as to Hamilton and she shall produce the twenty-four emails in question by
September 15, 2021.
C.

The Board Shall Produce All Communications Otherwise Covered By Its
Attorney-Client Privilege That Involved Robling Prior To May 21, 2015.

The Board has withheld 556 communications involving Robling, arguing that the Board’s
attorney-client privilege extends to Robling because he “worked for the College from April 2015
through mid-December 2015.” (Dckt. #387 at 5.) The College’s records establish, however, that
Robling began his employment for the College on May 21, 2015 as a part-time, temporary (not
to exceed one year) employee. (Dckt. #371-7 & #371-8.) Rather than live with the College’s
records, the Board muddies the waters by its reliance on Robling’s affidavit, in which he makes
the imprecise statement that he “worked for the college from approximately April 2015 through
mid-December 2015.” (Dckt. #371-3.) The Board goes on to assert – again citing only to
Robling’s affidavit – that Robling assisted with the preparation for the first Board meeting after
the election of defendant trustees (which occurred on April 30, 2015) and began his consulting
work with “senior administrators” and the Board in April 2015. (Dckt. #387 at 15.)
The Court finds that Robling’s imprecise statement of when he began working for the
College is insufficient to override the College’s employment records as to when he began to
work as a College employee. Moreover, the Board – which places all of its eggs in the “Robling
was a College employee” basket – does not even attempt to show that Robling, in his role as an
informal consultant, falls within the exception to the third-party waiver rule. Consequently, the
Court finds that the Board has waived any attorney-client privilege that otherwise existed with
respect to the twenty-five communications that were shared with Robling prior to May 21, 2015,
the date that Robling was hired by the College. (See Dckt. #374 at 8-9 – listing communications

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between 4/26/2015 and 5/15/15). Accordingly, Breuder’s motion to compel is granted with
respect to these communications and the Board must produce them by September 15, 2021.
D.

The Current Record Is Insufficient To Determine Whether The Board’s
Attorney-Client Privilege Extends To Communications Involving Robling
During the Time He Was Employed By The College.

Although Breuder has raised concerns regarding the purportedly unusual circumstances
surrounding Robling’s hiring by the College and his simultaneous work on behalf of Hamilton
and the Board, the Court will accept – consistent with the College’s employment records – that
Robling was an employee of the College from May 21, 2015 through mid-December 2015. 11
Nevertheless, the Court is without sufficient information on the current record to determine if the
Board’s attorney-client privilege should extend to Robling in the capacity in which he actually
worked for the College.
As Breuder explains, to determine whether a corporate entity’s attorney-client privilege
extends to an employee under federal law, courts apply the so-called “subject matter” test (as
opposed to the narrower “control group” test applicable under Illinois law). See Upjohn v.
United States, 449 U.S. 383, 396-97 (1981) (rejecting the control group test in favor of a subject
matter-based approach). Under the subject matter test, the court must determine “whether the
communication was made at the instance of the employee’s superior and whether the subject
matter of the communication, upon which the attorney’s advice is sought by the corporation and

11

As the Board points out, plaintiff has not cited any authority to support the proposition that a court may
“overlook an employee’s status on the basis of a plaintiff’s belief that the employee was taking direction
from someone else” or that Robling’s simultaneous employment waives the Board’s right to assert its
privilege. (Dckt. #387 at 7.)

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contained within the communication, was within the scope of the employee’s duties.” 12 Barton
v. Zimmer Inc., No. CIV.A. 1:06-CV-208, 2008 WL 80647, at *4 (N.D.Ind. Jan. 7, 2008);
Washtenaw Cty. Employees’ Ret. Sys. v. Walgreen Co., No. 15 C 3187, 2020 WL 3977944, at *2
(N.D.Ill. July 14, 2020) (“[T]he 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.”); U.S. ex rel. McGee v.
IBM Corp., 11 C 3482, 2017 WL 1232616, at *2 (N.D.Ill. Apr. 4, 2017) (same).
The parties dispute the role that Robling actually played as an employee of the College.
The Board relies on Robling’s affidavit for a description of his duties and actions as a College
employee and it does not offer affidavits from President Collins (for whom Robling was
purportedly serving as an assistant) or from any other senior College officials or Board trustees.
As described in detail in Section I(C), Robling avers that he worked closely with Collins, senior
College officials, and Board members on several very important policy issues and that these
officials sought his advice and relied upon his recommendations when making key decisions.
(Dckt. #371-3 at 3-5.) 13

12

The Board agrees that the subject matter test is generally applicable under federal law to extend a
corporate privilege to lower-level employees, but it nonetheless argues that this test is inapplicable here
where Robling is within “the College’s control group.” (Dckt. #387 at 12.) Not only, as discussed below,
has the Board failed to substantiate Robling’s senior position, but the Supreme Court squarely rejected the
control group analysis in Upjohn, 449 U.S. at 396-97. Furthermore, courts have found that “the subjectmatter test also covers communications between a corporation’s attorney and its control group, i.e. those
vested with authority both to seek legal advice and to participate significantly in the response to that
advice.” See, e.g., Barry v. Medtronic, Inc., No. 1:14-CV-104, 2016 WL 7665426, at *2 (E.D.Tex. Oct.
31, 2016).
In its brief, the Board builds off of Robling’s affidavit and asserts that Robling: (1) “was a critical voice
on the College’s senior leadership team”; (2) was a “necessary participant” in all of the privilege
communications; (3) “was consulted before key decisions were made,”; and (4) provided advice that
“often guided the College’s final decisions.” (Dckt. #387 at 13-15.) These statements in the Board’s
brief, however, “are not evidence and do not count” for purposes of the Court’s analysis. MB Fin. Bank,
N.A. v. Walker, 741 F.Supp.2d 912, 916 (N.D.Ill. 2010) (citing cases)
13

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For his part, Breuder asserts that Robling’s declaration should be disregarded entirely
because it is contradicted by evidence produced in this litigation, including Robling’s own prior
deposition testimony. (Dckt. #371 at 3-4.) Breuder is correct that “the sham-affidavit rule
prohibits a party from submitting an affidavit that contradicts the party’s prior deposition or other
sworn testimony.” James v. Hale, 959 F.3d 307, 316 (7th Cir. 2020). But the Court has
reviewed the portions of Robling’s deposition transcript provided and finds that there are no
material contradictions between his prior testimony and his affidavit. Consequently, the “shamaffidavit rule” does not require the Court to strike Robling’s affidavit.
Breuder further asserts that: (1) Robling’s affidavit is not corroborated by the affidavits
of senior College officers, any other College administrators, or Board trustees; (2) the vast
majority of the communications involving Robling do not also involve the senior College and
Board administrators whom Robling was supposedly advising; and (3) only a quarter of the
withheld emails (110 out of 442) involving Robling also involve a College administrator,
including Collins – whom Robling was purportedly hired to assist. (Dckt. #371 at 13, 17.)
It is typical (as Breuder suggests) for a corporate entity seeking to preserve its attorneyclient privilege to offer affidavits from one or more senior officials to corroborate the testimony
from a lower-level employee or third-party agent regarding that employee or agent’s role with
the corporation. See e.g., The Sols. Team, Inc. v. Oak St. Health, MSO, LLC, No. 17 CV 1879,
2020 WL 30602, at *2 (N.D.Ill. Jan. 2, 2020) (corporation seeking to extend its privilege to a
third-party agent under Illinois law provided declarations of its Chief Technology Officer and
the third-party agent). It is unclear why the Board did not provide such corroboration in this
instance. The Court is reluctant to place decisive weight on Robling’s uncorroborated affidavit
given that it lacks foundation and is somewhat speculative to the extent that he makes

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representations as to the degree that the College’s senior officials relied on his advice. The Court
is also given pause by the apparent fact that most of the withheld communications involving
Robling do not also involve the Board and senior College administrators he asserts that he was
working closely with and advising.
For these reasons, the Court – while not reaching a firm conclusion – is doubtful that the
Board has met its burden of showing that it did not waive its attorney-client privilege over the
communications that involve Robling based on the present record. Given that the waiver of
privilege is disfavored, Schmalz v. Vill. of Riverside, No. 13 C 8012, 2018 WL 1138552, at *2
(N.D.Ill. Mar. 2, 2018), and the large number of communications that are potentially subject to
production on account of waiver, the Court finds it appropriate to provide the Board with one last
chance to supplement the record before the Court makes its final decision on this matter. Id.
(granting second chance); Muro v. Target Corp., No. 04 C 6267, 2006 WL 3422181, at *6
(N.D.Ill. Nov. 28, 2006) (same). Accordingly, the Court will deny without prejudice Breuder’s
motion to compel regarding the communications involving Robling during the time he was
actually an employee of the College. The Board is granted until September 29, 2021 to provide
Breuder with any additional evidence it chooses to supplement the record on this issue. The
parties shall thereafter meet and confer and Breuder is granted leave to file a renewed motion to
compel the production of these communications if the parties cannot reach agreement.

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CONCLUSION
For the foregoing reasons, plaintiff’s motion to compel Hamilton and the Board to
produce improperly withheld communications involving Christopher Robling (Dckt. #370) is
granted in part and denied without prejudice in part.

ENTERED: September 9, 2021
______________________
Jeffrey I. Cummings
United States Magistrate Judge

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