Harris v. Panther City Hauling, Inc. et al

Filing 33

ORDER re 29 Discovery Dispute Conference. The Court notes that Plaintiff has submitted supplemental briefing regarding document 11. An order regarding document 11 will be issued in a seperate docket entry. Signed by Magistrate Judge Donald G. Wilkerson on 1/3/2014. (jdp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SETH D. HARRIS,

)
)
Plaintiff,
)
)
v.
)
)
PANTER CITY HAULING, INC., PERRY )
RIDGE LANDFILL, INC., JOSEPH MAZZA, )
)
Defendants.
)

Case No. 3:13-cv-337-MJR-DGW

ORDER
WILKERSON, Magistrate Judge:
In the underlying lawsuit, the United States Department of Labor alleges that Defendants,
Panther City Hauling, Inc., Perry Ridge Landfill, Inc., and Joseph Mazza engaged in
discriminatory practices when they terminated Complainant Mark Gates’ employment after he
filed a verbal complaint with the Occupational Safety and Health Administration (OSHA)
regarding the lack of proper work equipment.
Defendants Perry Ridge and Joseph Mazza (“Defendants”) propounded discovery requests
to produce documents. On December 3, 2013, the Department of Labor produced a privilege log
objecting to Defendants requests for production as protected by certain privileges—the
attorney-client privilege, the government informer’s privilege, and the deliberative process
privilege. The parties dispute the confidentiality of twenty-three documents. Further at issue is
the location of Joseph Mazza’s deposition and Defendants’ objections to certain interrogatories.
This Court conducted an in camera review of the documents, held an in-person hearing in the East
St. Louis Courthouse on the matter, and finds the following:

Discussion
The Department of Labor alleges three privileges—the attorney-client privilege, the
government informer’s privilege, and the deliberative process privilege—in its privilege log
produced on December 3, 2013. The twenty-three documents the DOL deemed privileged include
handwritten notes, worksheets, diary entries, memoranda, and emails. The parties have agreed
that documents 2-7, 13, 14, and 15 are not at issue as they have been produced in a redacted form.
Attorney-Client Privilege
The attorney-client privilege protects confidential communications made by a client
to his attorney where legal advice is sought from a professional legal advisor in his capacity
as such. Rehling v. City of Chicago, 207 F.3d 1009, 1019 (7th Cir. 2009). The inquiry into
whether documents are subject to a privilege is a highly fact-specific one. “Only when the
district court has been exposed to the contested documents and the specific facts which support
a finding of privilege under the attorney-client relationship for each document can it make
a principled determination as to whether the attorney-client privilege in fact applies.” In
re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000) (quoting Holifield v. United
States, 909 F.2d 201, 204 (7th Cir. 1990). An assertion of privilege, therefore, must be made
on a document-by- document basis. United States v. White, 950 F.2d 426, 430 (7th Cir. 1991).
The principles of the privilege, as adopted by the Seventh Circuit are as follows:
(1) Where legal advice of any kind is sought, (2) from a 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 his instance permanently
protected, (7) from disclosure by himself or by the legal adviser, (8) except the
protection be waived.
United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997) (citing 8 John Henry Wigmore,

Evidence in Trials at Common Law § 2292 (John T. McNaughton rev.1961).
As the party seeking to establish the privilege, Defendants bear the burden of
demonstrating all of the elements. United States v. BDO Seidman, 337 F.3d 802, 811 (7th Cir.
2003).
Federal Deliberative Process
“The deliberative process privilege protects communications that are part of the
decision-making process of a governmental agency.”
Cir. 1993).

U.S. v. Farley, 11 F.3d 1385, 1389 (7th

The underlying policy of the privilege is to promote frank discussion of legal and

policy matters that are essential to the decision making process of a governmental agency. Id.
The privilege is not absolute; it “may be overcome where there is a sufficient showing of a
particularized need to outweigh the reasons for confidentiality.” Id.
Courts conduct a two-step inquiry to determine whether the information is protected from
disclosure under the privilege.

Sandholm, 2010 WL 899032 at *3.

First, the governmental

agency must show that the privilege applies. Id. The privilege applies only to “pre-decisional”
and “deliberative” matters. Id. Communications are pre-decisional if the information
was generated before the adoption of an agency policy, and deliberative if they involve the give
and take of the consultative process. Id. If the privilege applies, the court will order the
disclosure if the plaintiff demonstrates a particularized need for the documents that outweighs the
defendant’s need for confidentiality. Id.
Government Informant’s Privilege
The doctrine of the informer's privilege is not a recent phenomenon, having its roots in the
English common law. Dole v. Local 1942, Intern. Broth. of Elec. Workers, AFL-CIO, 870 F .2d

368 (7th Cir. 1988). The underlying concern of the doctrine is the common-sense notion that
individuals who offer their assistance to a government investigation may later be targeted for
reprisal from those upset by the investigation. Id. The purpose of the privilege is the furtherance
and protection of the public interest in effective law enforcement. Roviaro v. United States, 353
U.S. 53, 77 (1957). The privilege recognizes the responsibility of citizens to cooperate with law
enforcement officials and, by providing anonymity, encourages them to assume this responsibility.
Dole, 870 F .2d at 372. With the threat of reprisal real and unprotected against, well-intentioned
citizens may hesitate or decline to assist the government in tracking down wrongdoers. Id. The
threatened reprisal may be physical, but the privilege also recognizes the subtler forms of
retaliation such as blacklisting, economic duress and social ostracism. Id.
The most effective means of protection, and by derivation the most effective means of
fostering citizen cooperation, is bestowing anonymity on the informant, thus maintaining the
status of the informant's strategic position and also encouraging others similarly situated who have
not yet offered their assistance. Dole, 870 F .2d at 372. In civil cases the privilege, which limits
the right of disclosure usually called for by the Federal Rules of Civil Procedure, is arguably
greater since not all constitutional guarantees which inure to criminal defendants are similarly
available to civil defendants. Id.
When asserting the privilege the government need not make a threshold showing that
reprisal or retaliation is likely, because of the significant policy consideration behind the privilege,
as well as the difficulty of such proof. Dole, 870 F .2d at 372. Rather, the government is granted
the privilege as of right. Id. But the privilege is qualified; it yields when the identification of the
informant or of a communication is essential to a balanced measure of the issues and the fair

administration of justice. Rovario, 353 U.S. at 60-61, 77 (“Where the disclosure of the informer's
identity, or the contents of his communication is relevant and helpful to the defense of an accused,
the privilege must give way”). The party opposing the privilege may overcome it upon showing
his need for the information outweighs the government's entitlement to the privilege. Dole, 870 F
.2d at 373. The district judge must take a balanced approach and in the end decide whether the
party opposing the privilege has credible need for the information in order to defend itself in the
action—a need greater than the important policy consideration underlying the privilege. Id.
Document 1
Plaintiff claims that Document 1—handwritten notes taken by an investigator during
interviews with employees and management—is protected by the government informer’s
privilege, the deliberative process privilege, and the attorney-client privilege. The handwritten
notes were used by an investigator when he drafted typewritten memos to file. Plaintiff contends
that these notes are privileged because they contain the investigator’s opinions regarding what is
factually relevant to the investigation. That kind of opinion, Plaintiff contends, is protected by
the deliberative process privilege as it is prepared for the purpose of litigation. Plaintiff further
alleges that the document contains information identifying witnesses which falls under the
purview of the government informer’s privilege.
Defendants are entitled Document 1. The attorney-client privilege does not apply as this
document only contains the investigator’s notes and is not a communication between a client and
his attorney. The deliberative process privilege does not apply as the investigator’s notes do not
implicate the agency’s decision making process on a bigger policy issue in this case. Further, the
Defendants’ need to review the evidence against them to defend this case outweighs the

government's entitlement to the government informer’s privilege. The government, however, is
allowed to produce a redacted version of this document striking names of witnesses and
identifying information. This document, in redacted form, MUST BE PRODUCED BY
JANUARY 8, 2014.
Documents 8, 9, 10
Documents 8, 9, and 10 are the investigator’s typewritten memoranda of interviews with
employees. Plaintiff contends that the government informer’s privilege and the attorney-client
privilege applies. Plaintiff alleges that in light of the size—both companies have less than 24
employees—redacting the documents would render them useless.

This Court disagrees as

Defendants need to see the information and evidence against them to defend the case. As such,
Documents 8, 9, and 10, are ORDERED to be produced with the names of witnesses and any
identifying information redacted by JANUARY 8, 2014.
Document 11
Regarding Document 11, Plaintiff is granted leave until January 16, 2014 to file
supplemental briefing under seal as to why this document is privileged.
Document 12
Document 12, a typewritten memorandum of a phone interview with Complainant, shall be
produced and redacted to the extent that it discloses the amount that may satisfy Complainant in a
settlement agreement. Any names of witnesses or identifying information listed in this document
shall also be redacted. This document is ORDERED to be produced by JANUARY 8, 2014.
Documents 16, 17, 18
Document 16 is a seven-page final report of an investigator. The report was compiled by

the agency and submitted to the Assistant Regional Administrator of OSHA, Region V, for review
regarding whether to refer the case to their lawyers to file suit. The report maps out legal issues
and gives a recommendation for litigation. This document is protected by the deliberative
process privilege as it shows OSHA’s decision-making process. For the same reasons, Document
17 is also protected. Document 18, however, is ORDERED to be produced by JANUARY 8,
2014 as it does not go to OSHA’s decision-making process.
Documents 19 and 20
Document 19 is protected by the attorney-client privilege as it was drafted by Plaintiff’s
counsel and sent the Assistant Regional Administrator of OSHA and the investigator on the case.
Document 20 is also protected as it references Document 16, the final report of the investigator
submitted to the Regional Administrator for review to decide whether to refer the case to the
lawyers. The document also contains settlement negotiations. These two documents will not be
produced to Defendants.
Documents 21 and 22
Document 21 and 22 are privileged as they contain settlement negations and discussions
regarding what amount of money might satisfy Complainant in a settlement. As such, documents
21 and 22 will not be produced.
Document 23
Document 23, an email from OSHA’s Assistant Regional Administrator to the
investigator, is ORDERED produced with names of witnesses and any identifying information
redacted by JANUARY 8, 2014.
Deposition Location

The parties dispute the location of the deposition of Joseph Mazza. The deposition, to be
scheduled by Plaintiff, is ORDERED to take place in the Southern District of Illinois as the
complaint was filed in the Southern District and any subpoena would issue from said district.
Further, deponent has indicated that he would prefer to be deposed in the Southern District of
Illinois and he regularly transacts business in the District.
Other Discovery Issues
Also at issue are Perry Ridges’ responses to Plaintiff’s interrogatory number 15 and request
for production number 29.

Interrogatory 15 asks Defendant Perry Ridge to “identify all

employees, including any former employees, who have ever been subject to disciplinary action in
any manner for the time period of July 27, 2009, through and including July 27, 2011.”
Defendants object on the grounds that it is irrelevant and immaterial to any issues raised in the
litigation. The Court finds that the information sought is relevant and material to this lawsuit.
Further, disciplinary action is not vague or ambiguous as Defendant contends. Defendant Perry
Ridge is ORDERED to answer interrogatory 15 by January 8, 2014.
Further, Plaintiff seeks “All documents relating to any and all contracts between Panther
City Hauling, Inc., and Perry Ridge Landfill, Inc.” This Court ORDERS that these documents be
produced by JANUARY 8, 2014, but only those documents from December 2008, when
Defendant Perry Ridge was formed, to April 9, 2013, when the complaint was filed.
IT IS SO ORDERED.
DATED: January 3, 2014
DONALD G. WILKERSON
United States Magistrate Judge