Klimek et al v. Worthington Cylinders Wisconsin LLC et al
Filing
91
MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 10/26/2016. (ma,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ERIC REJDAK, et al.,
Plaintiffs,
v.
WORTHINGTON CYLINDERS
WISCONSIN, LLC, et al.,
Defendants.
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No. 15 CV 9373
Magistrate Judge Young B. Kim
October 26, 2016
MEMORANDUM OPINION and ORDER
Plaintiffs Eric Rejdak and Dariusz Klimek have moved pursuant to Federal
Rule of Civil Procedure 26(c) for a protective order allowing them to avoid providing
the information requested in Defendant Irwin Industrial Tool Co.’s (“Irwin”)
Request for Production Number 14 (“Request 14”) and excusing them from
submitting a privilege log in response to Request 14. For the following reasons,
Plaintiffs’ motion is denied.
Analysis
In moving for a protective order, Plaintiffs argue that they should be excused
from producing a privilege log in response to Request 14 because, according to them,
a privilege log would be impossible to create and because it inevitably would
disclose protected attorney work product. As ordered, the parties filed a status
report on August 10, 2016, (R. 74), advising the court of written discovery issues
they were unable to resolve on their own. One of the discovery issues noted in the
report was whether Plaintiffs should have produced a privilege log when objecting
to producing documents in response to Request 14. On August 22, 2016, Plaintiffs
again objected in court to producing a privilege log. The court permitted Plaintiffs
to brief this issue. (R. 78.)
In their motion for protective order, Plaintiffs first object to what they
characterize as the overly broad nature of Request 14, which seeks the following
information:
Any document You obtained from, or to which You have access
through, any litigation clearinghouse, or any other association,
organization group or individual, including without limitation any one
operated by the American Trial Lawyers Associations or the Attorney’s
Information Exchange Group, that concerns, involves or in any way
related to Newell; the Product; the Cylinder; the Torch; any product or
exemplar designed, tested, created, manufactured, assembled, sold, or
distributed by Newell; or any product or exemplar that you contend is
the same or similar model as the Product, Cylinder, or Torch.
(R. 82, Pl.’s Mot. at 1.) Plaintiffs contend that Request 14 is overly broad and seeks
to target their attorneys’ litigation strategies by probing into the documents the
attorneys gathered in anticipation of the current litigation. (Id. at 2.) Plaintiffs
further argue that producing a privilege log in response to Request 14 necessarily
would disclose their attorneys’ work product because, they say, even listing the
documents in their possession would reveal their litigation strategy.
In other
words, according to Plaintiffs, providing a list of responsive documents in a privilege
log would give Irwin the exact information to which they say it is not entitled. (Id.
at 9.)
Federal Rule of Civil Procedure 26(c)(1) allows the court, for good cause, to
issue an order protecting a party or person from “annoyance, embarrassment,
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oppression, or undue burden or expense.” A protective order that limits discovery
requires the moving party to show good cause by submitting “a particular and
specific demonstration of fact, as distinguished from stereotyped and conclusory
statements.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981) (quotation and
citation omitted). The burden of showing good cause rests on the moving party.
Pfizer Inc. v. Apotex Inc., 744 F. Supp. 2d 758, 762, 766 (N.D. Ill. 2010). “A showing
of good cause is only unnecessary when the court’s review of the record makes plain
the need for a protective order.” Andrew Corp. v. Rossi, 180 F.R.D. 338, 342 (N.D.
Ill. 1998).
With respect to Plaintiffs’ initial objection that Request 14 is overly broad,
the hyperbolic language they employ in support of that objection does not meet the
good-cause threshold. According to Plaintiffs, “Request 14 covers every document
created in the history of mankind.” (R. 82, Pls.’ Mot. at 2.) They double down on
that argument in their reply, where they assert that “there is not a document on
Earth which is not covered by Request 14.” (R. 89, Pls.’ Reply at 3 (emphasis in
original).) It is hard to take such assertions seriously. Surely, newly minted Nobel
Laureate Bob Dylan’s songbook would not be responsive to Request 14, nor would,
say, a tourist’s map of Chicago or a recipe for chocolate chip cookies. It may be that
Plaintiffs have legitimately objected to Request 14 as being overly broad, but it is
unreasonable to suggest that a request clearly aimed at documents concerning
Newell and certain specific products can be read to encompass the totality of
humanity’s written record.
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Turning to Plaintiffs’ more serious argument, that Request 14 seeks
documents protected by the work product doctrine, without more information the
court is unable to fully evaluate their objection.
Plaintiffs make a conclusory
allegation that Newell seeks the information in Request 14 so that it can get a “free
ride” on Plaintiffs’ attorneys’ work product.
omitted).)
(R. 82, Pls.’ Mot. at 4 (citation
Specifically, they argue that Request 14 seeks to gain access to
documents their attorneys curated in anticipation of this litigation, and therefore,
turning over this group of documents would necessarily reveal their attorneys’
thought processes.
The work product doctrine recognizes that “[n]ot even the most liberal of
discovery theories can justify unwarranted inquiries into the files and the mental
impressions of an attorney.” See Hickman v. Taylor, 329 U.S. 495, 511 (1947). The
doctrine is designed to protect from disclosure a lawyer’s work reflected “in
interviews, statements, memoranda, correspondence, briefs, mental impressions,
personal beliefs,” and other things which the lawyer prepares with an “eye toward
litigation.” Id. The work product doctrine has been codified in Federal Rule of Civil
Procedure 26(b)(3), which specifies that “[o]rdinarily, a party may not discover
documents and tangible things that are prepared in anticipation of litigation or for
trial by or for another party or its representative.” Recognizing that the rule targets
documents that are prepared by a party or its attorneys, Plaintiffs point to a
number of out-of-circuit cases to support their argument that documents prepared
by third parties and that otherwise would not be protected become work product
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when selected and compiled by an attorney.1 But in cases like Omaha Public Power
and James Julian, the parties seeking discovery went after subsets of documents
that had already been produced, consisting of documents segregated from the
production by their attorneys to prepare a witness for deposition. See Omaha Pub.
Power Dist. v. Foster Wheeler Corp., 109 F.R.D. 615, 616 (D. Neb. 1986); James
Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982). In both of those
cases, the court considered the subsets of previously disclosed documents to be work
product because the purpose of the request was to scrutinize the attorneys’
document-selection process for preparing witnesses for depositions. Omaha Pub.
Power Dist., 109 F.R.D. at 615-16; James Julian, Inc., 93 F.R.D. at 144 (noting that
plaintiff did not object to producing documents in binder, but only objected to
producing binder itself, which represented counsel’s selection and ordering
decisions). In other words, because the plaintiffs had already obtained documents
through discovery, requiring the defendants to produce a subset opposing counsel
had culled for a specific purpose would convey no additional information other than
the attorneys’ strategies in organizing those documents. See also Sporck v. Peil, 759
Plaintiffs also cite to a Seventh Circuit case where the court described the work
product doctrine as covering any document that “can fairly be said to have been
prepared or obtained because of the prospect of litigation,” see Binks Mfg. Co. v. Nat.
Presto Indus., Inc., 709 F.2d 1109, 1118-19 (7th Cir. 1983) (emphasis added)
(quoting 8 Wright & Miller, Federal Practice & Procedure § 2024), and two district
court cases citing it, to support their argument that it is enough for an attorney to
have obtained a document prepared by a third-party to cloak that document in
work-product protection. (R. 82, Pls.’ Mot. at 3.) But none of those cases discussed
whether an attorney’s document-selection process elevates to the status of protected
work product documents which are prepared by third parties and which are
otherwise unprotected.
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F.2d 312, 315-16 (3d Cir. 1985) (holding that the selection process of alreadyproduced documents in preparing a witness for deposition constitutes attorney work
product).
On the other hand, in Shelton v. American Motors Corp., 805 F.2d 1323, 1325
(8th Cir. 1986)—another case Plaintiffs rely on here—opposing counsel attempted to
depose the defendant’s in-house counsel to determine the existence of relevant
documents. In the deposition, in-house counsel refused to answer questions relating
to the existence of specific documents in the fear that acknowledging her memory of
certain documents would reveal to her opponent which of a large swath of
documents she found significant.
Id. at 1328-29.
The court noted that the
information the deposing party sought could be or already had been obtained
through other means of discovery. Id. at 1327. In those circumstances, the court
held that revealing her recollection would expose her legal theories concerning the
case. Id. at 1329. Accordingly, the court concluded that the attorney was entitled to
refuse to answer the questions on the basis of the work product doctrine. Id.
Conversely, courts in this Circuit have concluded that the mere assembly of
documents without any additional information that would reveal the attorney’s
thought process is subject to discovery. See E.E.O.C. v. Jewel Food Stores, 231
F.R.D. 343, 347 (N.D. Ill. 2005). That is because “the mere assembly of documents,
without more, does not indicate that the attorney placed special weight on those
documents as opposed to documents that were not obtained, and does not reveal
which of the assembled documents the attorney deems important.” Id. Especially
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when a vast number of documents are involved in the discovery request, the
possibility of the opposing party discerning any litigation strategy is highly
unlikely. See Portis v. City of Chicago, No. 02 CV 3139, 2004 WL 1535854, at *2
(N.D. Ill. 2004). Moreover, the mere act of gathering documents from third parties
“does not ‘gloss’ the documents with an attorney’s mental impressions.”
See
Kartman v. State Farm Mut. Auto Ins. Co., 247 F.R.D. 561, 564 (S.D. Ind. 2007)
(quotation omitted). Although the court cannot determine at this time whether
Request 14 targets protected information, the mere possession of documents by
Plaintiffs’ attorneys does not elevate otherwise unprotected documents to the status
of work product.
The reason this court is unable to fully evaluate the work product objection is
because Plaintiffs seek to be absolved of the obligation to produce a privilege log,
arguing that even broadly characterizing the responsive documents will reveal their
attorneys’ strategies.
(R. 82, Pls.’ Mot. at 2, 9-10.)
As an initial matter, they
reiterate their hyperbolic over-breadth objection, arguing that were they required to
submit a privilege log it would consist of one word that says, “Everything.” (Id. at
2.) That argument actually undercuts their privilege assertion, because certainly
they can’t mean that every document in the history of mankind is subject to the
work product privilege simply because it might pass through their attorneys’ hands.
More importantly, Federal Rule of Civil Procedure 26(b)(5) requires parties to
produce a privilege log “[w]hen a party withholds information otherwise
discoverable by claiming that the information is privileged or subject to protection
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as trial-preparation material . . . .” The privilege log must “(i) expressly make the
claim; and (ii) describe the nature of the documents, communications, or tangible
things not produced or disclosed–and do so in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess the
claim.”
In arguing that a privilege log necessarily would disclose protected
information, Plaintiffs overlook the mandatory language in Rule 26(b)(5), and point
to several out-of-circuit cases that are factually distinct from the current situation.
For example, in Schwarzkopf Technologies Corporation v. Ingersoll Cutting Tool
Company, 142 F.R.D. 420, 422-23 (D. Del. 1992), the party responding to discovery
produced a privilege log listing “collections” of documents but not identifying the
documents individually. The court declined to compel the plaintiff to provide a
more detailed log, in order to protect the plaintiff’s attorney’s understanding of the
case. Id. None of the cases Plaintiffs cite entirely absolve a party of submitting a
privilege log. Here, even if the documents Plaintiffs withhold based on the work
product doctrine are compilations, Plaintiffs have not shown that there is good
cause to justify absolving them of the Rule 26(b)(5) requirement. Accordingly, they
must produce a privilege log giving at least a general description of the withheld
materials. See Fed. R. Civ. P. 25(b)(5).
Conclusion
For the foregoing reasons, the motion is denied. To the extent that Plaintiffs
are withholding otherwise discoverable, responsive information based on work
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product protection, they must produce a privilege log in response to Request 14 as
required by Rule 26(b)(5).
ENTER:
_________________________________
Young B. Kim
United States Magistrate Judge
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