Cage v. Harper et al
Filing
195
MEMORANDUM Opinion and Order Signed by the Honorable Sunil R. Harjani on 12/19/2019. Mailed notice(lxs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICK CAGE,
Case No. 17-CV-7621
Plaintiff,
v.
Magistrate Judge Sunil R. Harjani
TIFFANY HARPER, et al.
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff, Patrick Cage, has sued the Board of Trustees of the Chicago State University over
his termination as General Counsel of the University. In the instant matter, Plaintiff has filed a
motion to compel Akerman LLP, a law firm, to comply with a subpoena for documents where
Akerman has asserted attorney-client privilege over the documents [175, 176]. Defendants have
filed a response brief objecting to the motion [186] and Akerman has adopted those arguments
[185]. The question in this dispute is whether the “at-issue” waiver of the attorney-client privilege
doctrine applies to compel production of the documents from Akerman. The Court finds that it
does not, and therefore denies Plaintiff’s motion to compel.
Discussion
Plaintiff seeks to compel the production of communications between legal counsel
(Akerman) and its client (the Board of Trustees and Chicago State University) on the basis that
Defendants have pled affirmative defenses of good faith and qualified immunity, and therefore
have waived the attorney-client privilege.
The attorney-client privilege is “one of the oldest recognized privileges for confidential
communications,” United States v. BDO Seidman, 337 F.3d 802, 810 (7th Cir. 2003), and exists
primarily to “‘encourage full and frank communication between attorneys and their clients.’”
United States v. Zolin, 491 U.S. 554, 562 (1989) (quoting Upjohn Co. v. United States, 449 U.S.
383, 389 (1981)). However, the attorney-client privilege can be waived, either explicitly or by
implication. Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1098 (7th Cir. 1987); see also United
States v. Nobles, 422 U.S. 225, 239 (1975); United States v. Brock, 724 F.3d 817, 821 (7th Cir.
2013). Express waiver occurs where “information that would otherwise be privileged is not kept
confidential.” Patrick v. City of Chicago, 154 F. Supp. 3d 705, 711 (N.D. Ill. 2015). Implied
waiver, the relevant inquiry in this case, can occur when a client asserts claims or defenses that put
his or her attorney's advice “at issue” in the litigation. Beneficial Franchise Co., Inc. v. Bank One,
N.A., 205 F.R.D. 212, 216 (N.D. Ill. 2001).
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The “at issue” waiver doctrine is limited and “should not be used to eviscerate the attorneyclient privilege.” Silverman v. Motorola, Inc., 07 CV 4507, 2010 WL 2697599 at *4 (N.D. Ill. July
27, 2010) (citing LG Electronics v. Whirlpool Corp., 2009 WL 3294802 (N.D. Ill. 2009)). Merely
asserting a claim or defense to which attorney-client communications are relevant, without more,
does not constitute a waiver of attorney-client privilege. The privileged party must affirmatively
put at issue the specific communication to which the privilege attaches before the privilege will be
deemed waived. United States v. Capital Tax Corp., 04 CV 4138, 2011 WL 1399258 (N.D. Ill.
2011); Beneficial Franchise Co., Inc. v. Bank One, N.A., 205 F.R.D. 212, 216 (N.D. Ill. 2001).
The Seventh Circuit has not addressed directly the federal common law standard for when
a party waives attorney-client privilege by putting privileged information “at issue” in a case.
However, in Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1175 n.1 (7th Cir. 1995), the
Seventh Circuit cited the standard adopted by the Third Circuit in Rhone-Poulenc. As a result,
district courts within this circuit have applied the Rhone-Poulenc standard. See, e.g., DR
Distributors, LLC v. 21 Century Smoking, Inc., 2015 WL 5123652 (N.D. Ill. 2015); Novak v. State
Parkway Condo. Ass'n, 2017 WL 1086767 (N.D. Ill. 2017)); Capital Tax Corp., 2011 WL
1399258; Silverman, 2010 WL 2697599; Bosch v. Ball-Kell, 2007 WL 601721 (C.D. Ill. 2007);
Schofield v. U.S. Steel Corp., 2005 WL 3159165 (N.D. Ind. 2005); Chamberlain Group v.
Interlogix, Inc., 2002 WL 467153 (N.D. Ill. 2002); Beneficial Franchise Co., 205 F.R.D. at 216.
Accordingly, at issue waiver occurs when a party “affirmatively put[s] at issue the specific
communication, document, or information to which the privilege attaches.” Dexia Credit Local v.
Rogan, 231 F.R.D. 268, 275 (N.D. Ill. 2004). Put another way, attorney-client privilege is
generally waived when a client asserts claims or defenses that put his attorney’s advice at issue in
the litigation. Garcia, 58 F.3d at 1175, n.1.
Here, Plaintiff has not established that Defendants have placed the attorney-client
communications at issue. Instead, Defendants have explicitly stated it is not relying upon the
advice of counsel in proving any of its affirmative defenses. Nor have Defendants relied upon the
advice of counsel or any communications with counsel at any deposition or in response to any
discovery request. See e.g. Capital Tax Corp., 2011 WL 1399258, at *2 (finding that at issue
waiver did not occur where a plaintiff intended to meet its burden of proof on a claim without
using privileged information). In turn, Plaintiff has not provided any specific instance in which a
Defendant has referenced or identified communications with counsel as being part of the assertion
of any affirmative defense. Moreover, Defendants can seek to establish through non-privileged
communications and actions these affirmative defenses; nothing about these defenses mandates
that advice of counsel be used to prove them.
Rather, two things are clear from Plaintiff’s motion and reply brief. First, it is Plaintiff
who is placing the communications at issue because he believes that there must be relevant
information with respect to his termination from Chicago State University, as counsel appears to
have been consulted during the process of termination, at the very least, with respect to the drafting
of a severance agreement, as indicated by Defendants’ privilege log. However, Defendants have
not stated that its good faith or qualified immunity defense is based in any way on communications
with counsel. Indeed, Defendants essentially disavow any reliance upon advice of counsel for
these defenses in its response brief. [185] Rather, it is Plaintiff who has injected the issue of advice
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of counsel in the case, and then sought to obtain that information. That is not a basis for waiver –
the privilege holder must be the one to inject the issue. Motorola v. Hytera, No. 17 CV 1973, 2018
WL 1804350 at *6 (N.D. Ill. April 17, 2018).
Second, Plaintiff argues that fundamental fairness and access to the truth are considerations
that the Court must consider. While some courts have discussed these issues in deciding whether
an implied waiver occurred, the Court is aware of no case that has solely relied upon a fairness
analysis to find an implied waiver of privilege. Indeed, that holding would effectively eradicate
the attorney-client privilege. Relevant evidence is almost always found in attorney-client
communications – that is the point of the privilege. It allows the client the protection to discuss a
legal issue, often the subject of an eventual lawsuit, in confidence. The fact that the Board
consulted with lawyers in the course of terminating a senior level employee at the University is
not surprising or unusual. That alone does not waive the privilege on pure relevancy and fairness
grounds simply by the mere assertion that the Board generally acted in good faith and that its
officers are protected under the qualified immunity doctrine while acting under color of state law.
Finally, Plaintiff claims that the law in the Seventh Circuit is that the simple assertion of a
good faith defense or a qualified immunity defense is sufficient to waive the attorney-client
privilege. That is not the law in this Circuit. A mere assertion of an affirmative defense, alone,
does not waive the privilege. As discussed above, the attorney’s advice must be placed at issue in
the context of asserting the affirmative defense. See e.g. Beneficial, 205 F.R.D. at 216; see also
Johnson v. Rauland–Borg Corp., 961 F.Supp. 208, 211 (N.D.Ill.1997) (finding privilege waived,
in Title VII case, where employer “intends to argue that it is not liable because it acted reasonably
by employing the outside attorney to investigate the matter.”); Panter, 80 F.R.D. 718, 721 (N.D.
Ill. 1978) (finding that the at-issue waiver applied where defendants asserted as an essential
element of their defense reliance upon advice of counsel).
In support of its position, Plaintiff advances Lorenz v. Valley Forge Insurance Company,
815 F.2d 1095 (1987). However, in Lorenz, the Seventh Circuit found no at issue waiver of the
privilege because the defendant, the holder of the privilege, did not inject a new factual or legal
issue into the case. Even there, where defendant’s former attorney had testified, the Court
determined that the attorney’s testimony was simply a form of proof of a particular fact, but did
not inject a new legal issue into the case that warranted waiver. Plaintiff further urges this Court
to rely upon Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), which was cited by the Seventh
Circuit in Lorenz, but without any discussion of its analysis or holding. Some courts have
interpreted Hearn to be consistent with current Seventh Circuit law that the holder of the privilege
must advance a particular communication with counsel in support of a claim or defense to result
in an at-issue waiver. See Motorola, 2018 WL 1804350, at *5. This is likely because despite the
broad language in Hearn, the state officials who asserted the qualified immunity defense had
implicitly placed at issue the advice they received from the Attorney General’s office. Specifically,
Plaintiff presented evidence to the court that defendant had received prior notice from the Attorney
General that his conduct violated Plaintiff’s rights, which was probative in evaluating defendant’s
malice for his post-notice conduct, and could negate the qualified immunity defense raised by
Defendant. Hearn, 68 F.RD. at 582-583. Other courts have determined that Hearn sought to
impose a rule that any time a claim or affirmative defense was asserted, and where the relevant
information in support of the claim was contained in the privileged documents, the privilege was
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waived -- those courts have rejected reliance on Hearn. See e.g. In re the County of Erie, 546 F.3d
222, 227 (2d Cir. 2008) (collecting cases); Rhone-Poulenc, 32 F.3d at 863; Trustees of the
Electrical Workers v. Trust Fund Advisors, Inc., 266 F.R.D. 1, 12-13 (D.D.C. 2010). Regardless
of the holding in Hearn, the Court finds that the state of the law in the Seventh Circuit is clear that
Defendants must place the privilege communications at issue by advancing those privileged
communications in support of its affirmative defenses for there to be an at issue waiver. See
Garcia, 58 F.3d at 1175, n.1. Defendants have not done so, and thus the Court finds that there has
been no waiver. 1
Conclusion
Accordingly, Plaintiff’s Motion to Compel Compliance with Subpoena Service on
Akerman, LLP [175, 176] is denied.
SO ORDERED.
Dated: December 19, 2019
______________________________
Sunil R. Harjani
United States Magistrate Judge
1
The parties raise other arguments about the timeliness of bringing this dispute to the Court based on
prior representations to the district judge, and various alleged misrepresentations in the briefing. None of
these arguments merit any discussion by the Court.
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