Crabtree v. Experian Information Solutions, Inc.

Filing 87

MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 10/20/2017. Mailed notice (ao,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
QUENTIN CRABTREE
Individually and on behalf of others
similarly situated,
Plaintiff,

v.
EXPERIAN INFORMATION
SOLUTIONS, INC.
Defendant.

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No. 1:16-cv-10706
Hon. Charles R. Norgle, Sr.
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Plaintiff Quentin Crabtree moved for entry of an order compelling Defendant Experian
Information Solutions, Inc. to further respond to Plaintiff’s First Set of Requests for Production
of Documents. For the reasons set forth below, the Court generally denies Plaintiff’s motion.
Background
Defendant conducted an internal investigation at the request of in-house counsel between
September 22, 2011 and October 17, 2011 concerning one of its users, Western Sierra
Acceptance Corporation (“WSAC”).

(See Dkt. 76 at p. 2.)

As part of the investigation,

Defendant’s employees gathered information from various departments to aid counsel in
providing legal advice about Defendant’s business relationship with WSAC.

Defendant

ultimately decided to end its association with WSAC, but extended the termination date to midDecember 2011 to accommodate one of its agents, Tranzact Information Services (“Tranzact”),
whose business would be significantly impacted by the change. (Id.) As the termination date
approached, Defendant revisited the issue and discussed with its attorneys the legal implications
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of a continued relationship, triggering a “second stage” investigation in November and
December of 2011. (Id.) The reconsideration included returning to the initial investigation
results as well as evaluating regulatory implications of maintaining a business relationship.
Although Defendant found no compliance concerns, it nonetheless proceeded with the
termination after learning that Tranzact’s clients were no longer comfortable conducting business
with WSAC.
Plaintiff filed a motion to compel requesting that the Court (i) compel the production of
certain documents concerning both stages of the investigation, or alternatively conduct an in
camera review, and (ii) order Defendant to pay Plaintiff’s reasonable expenses for bringing the
motion. (See Dkt. No. 68.) Defendant filed its opposition brief requesting that the Court deny
Plaintiff’s motion and grant Defendant its expenses incurred in responding. (See Dkt. No. 76.)
The Court heard oral arguments on October 17, 2017. (See Dkt. No. 83.)
Discussion
The party asserting privilege has the burden to demonstrate its existence. Slaven v. Great
Am. Ins. Co., 83 F. Supp. 3d 789, 796 (N.D. Ill. 2015). 1 The Court finds that Defendant has met
its burden. Plaintiff, relying almost exclusively on Upjohn Co. v. United States, 449 U.S. 383
(1981), argues that Defendant’s assertion of attorney-client privilege is too broad. According to
Plaintiff, Upjohn “does not support [Defendant’s] claim that communications between nonlawyers are privileged, even if they are facilitating an investigation at the direction of an
attorney.” (See Dkt. 68 at p. 3.)

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The Court agrees with both parties that federal common law applies as to privilege in this matter because Plaintiff
has sued under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”). See Fed. R. Evid. 501 (“The
common law – as interpreted by United States courts in the light of reason and experience – governs a claim of
privilege . . . .”); Proposed Fed. R. Evid. 503(b).

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As Defendant asserts, the legal underpinning of Plaintiff’s argument, however, is
erroneous. Upjohn is not the apex of the scope of attorney-client privilege as applied to internal
corporate communications. Rather, it is arguably the genesis. Indeed, subsequent case law
developed from Upjohn confirms that communications between non-lawyer employees often
warrant protection from disclosure. See, e.g., Heriot v. Byrne, 257 F.R.D. 645, 665 (N.D. Ill.
2009). Application of the privilege turns on whether “‘the communications rest on confidential
information obtained from the client, or would reveal the substance of a confidential
communication by the client.’” Id. Although direct lawyer involvement is not required for the
privilege to attach, a lawyer must have “some relationship to the communication such that the
communication(s) between the non-lawyer employees would ‘reveal, directly or indirectly, the
substance of a confidential attorney-client communication.’” 2 Id. at 666 (quoting In re Sulfuric
Acid Antitrust Litig., 235 F.R.D. 407, 433 (N.D. Ill. 2006) (noting that the “privilege issue is not
settled by authorship or participation”)).
The Court finds that Defendant appropriately designated as privileged the
communications between its non-lawyer employees. The descriptions on the log for each of
these entries make clear that the challenged documents (1) relate to the investigation “launched
and conducted at the request of the Legal Department and for the Legal Department” and/or (2)
“reflect[] and contain[] communications used to facilitate the provision of legal advice and/or
services” (emphasis added). (See Dkt. 68 at Exh. B.) Contrary to Plaintiff’s assertion that
Defendant’s descriptions are boilerplate, Defendant has provided enough information about each

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Plaintiff contends that the communication between non-lawyer employees must be “at the direction of an attorney”
to warrant a privilege designation. (See Dkt. 68 at p.3.) That, however, is not the standard. As discussed, the
communication need only reveal “directly or indirectly” the substance of an attorney-client communication. See
Heriot, 257 F.R.D. at 665. Even if it were the standard (which it is not), Defendant’s explanations for applying
privilege establish that the communications were made “at the request of the Legal Department and for the Legal
Department.” (See Dkt. 68 at Exh. B.)

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communication to show why privilege attaches without simultaneously destroying privilege by
sharing too much. Defendant’s employees gathered information to assist counsel with rendering
legal advice about how to proceed with WSAC. Defendant later used confidential information
gathered during the initial investigation when it sought additional legal advice about WSAC.
Throughout both phases, employees collected facts that presumably relied on Defendant’s
confidential information and those facts were eventually channeled to counsel to aid in the
provision of legal services.

Defendant provided enough information to conclude that the

withheld documents are tied, even if indirectly, to legal advice rendered by counsel.
Additionally, the Court finds that Plaintiff’s speculation as to the amount of legal advice
in certain “business communications” is unfounded. Plaintiff contends that communications
relating to Defendant’s “second stage” investigation are not privileged because they pertain to
business advice Defendant received about its relationship with WSAC. (See Dkt. 68 at p. 8.)
Defendant argues that due to the highly regulated environment in which it operates, Defendant
understandably sought legal advice about a significant business decision to ensure any action it
took complied with FCRA regulations. (See Dkt. 76 at 9.)
The Court agrees with Defendant that the identified “business communications” were
properly withheld. The attorney-client privilege protects an attorney’s “legal advice about a
business decision.” Perius v. Abbott Labs., No. 07 C 1251, 2008 WL 3889942, *7 (N.D. Ill.
Aug. 20, 2008); see also Marusiak v. Adjustable Clamp Co., No. 01 C 6181, 2003 WL
21321311, at *2 (N.D. Ill. June 5, 2003) (“While it is true that solely personal or business advice
is not protected by the attorney-client privilege, legal advice relating to business matters clearly
is.”). Courts in this district have employed the following test to distinguish business from legal
advice: “[A] matter committed to a professional legal adviser is prima facie so committed for the

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sake of legal advice . . . and is therefore within the privilege unless it appears to be lacking in
aspects requiring legal advice.” Weeks v. Samsung Heavy Indus., Ltd., No. 93 C 4899, 1996 WL
288511, at *2 (N.D. Ill. May 30, 1996); see also Stafford Trading, Inc. v. Lovely, No. 05-C-4868,
2007 WL 611252, at *2 (N.D. Ill. Feb. 22, 2007). Here, the privilege protection is warranted
based on Defendant’s representation that withheld documents concerning the second stage of the
investigation contain discussions about the legal implications of certain business decisions,
including whether to continue working with WSAC. Plaintiff has presented nothing beyond
speculation to challenge Defendant’s contention that the disputed entries are appropriately
designated.
The Court notes one deficiency in Defendant’s supplemental privilege log that Plaintiff
did not specifically address. Entry Number 14 lacks a sufficient explanation to justify a privilege
designation. Entry No. 14 is an attachment to an email regarding the second stage of the
investigation, but the only explanation provided is that it is an “[a]ttachment to a privileged
email.” (See Dkt. 68 at Exh. B.) An attachment, however, needs to have its own privilege basis.
Muro v. Target Corp., No. 04 C 6267, 2006 WL 3422181, at *5 (N.D. Ill. Nov. 28, 2006) (“The
attachments, like the primary document, need to meet the privilege standard to be withheld from
discovery.”). The Court orders Defendant to supplement its privilege log as to Entry Number 14
within 7 days. Plaintiff has leave to file a motion for relief, renewing any objections as to Entry
No. 14, within 7 days of receiving Defendant’s supplemental privilege log.
The Court will not conduct an in camera review of the documents at issue. Plaintiff
failed to establish a well-founded basis for challenging Defendant’s privilege designations, and
Plaintiff is not entitled to an in camera review simply because he requested one. Absent an

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initial showing that such a review is warranted, the Court will not require Defendant to undertake
the burden of producing documents to the Court for an independent examination.
Finally, the Court chooses not to award fees to either party for expenses incurred filing or
responding to Plaintiff’s motion. Under Federal Rule 37(a)(5)(A), the Court shall order the
payment of reasonable expenses if a motion to compel is granted unless the opposing party’s
nondisclosure was “substantially justified.” The same standard applies against the movant under
Rule 37(a)(5)(B) if the motion to compel is denied – the payment of fees shall be ordered unless
the motion was “substantially justified.” The test for substantial justification as it applies to Rule
37(a) is whether there is a “‘genuine dispute.’” See Pierce v. Underwood, 487 U.S. 552, 565
(1988). A genuine, good faith dispute exists regarding Defendant’s withheld documents and thus
the payment of fees under Rule 37(a) is not appropriate.
Conclusion
For the reasons set forth above, the Court denies Plaintiff’s motion to compel [68].
SO ORDERED.

ENTERED:

DATE: 10/20/17

________________________________
M. David Weisman
United States Magistrate Judge

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