Espinoza et al v. Buncich et al

Filing 23

OPINION AND ORDER denying the remaining portion of Plaintiffs 17 Motion to Compel. Signed by Magistrate Judge Paul R Cherry on 10/5/12. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LINDA ESPINOZA and JOHN ZENONE,
Plaintiffs,
v.
JOHN BUNCICH, individually and in his official
capacity as Lake County Sheriff, and
COUNTY OF LAKE, INDIANA,
Defendants.

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) CAUSE NO.: 2:11-CV-297-JVB-PRC
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OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Compel [DE 17], filed on August 15,
2012. Defendant John Buncich filed a response on August 28, 2012, and Plaintiffs filed a reply on
September 4, 2012. On September 7, 2012, the Court issued an Opinion and Order granting in part,
denying in part, and taking under advisement in part the Motion to Compel and ordering Defendant
Buncich to submit to the Court for in camera inspection the nine documents identified in the
privilege log in response to Requests for Production Nos. 1 and 2 on or before September 14, 2012
along with a sur-reply brief, filed on the record, addressing the specific arguments raised in
Plaintiffs’ opening brief and reply brief regarding the claims of privilege for the nine documents at
issue in Plaintiff’s Request for Production of Documents Nos. 1-2. Buncich filed the documents
under seal and a sur-reply brief on September 14, 2012.
Requests for Production Nos. 1 and 2 seek the personnel file of each Plaintiff. Counsel for
Buncich did not object to these Requests for Production in the response to these requests. However,
a May 10, 2012 letter, which accompanied Buncich’s responses, contains a privilege log identifying
as privileged three letters (although Plaintiffs suggest that the first and third appear to be the same)
from attorney George Patrick in Plaintiff Espinoza’s personnel file and six letters from attorney
George Patrick in Plaintiffs Zenone’s personnel file. The letters were not produced because either
they are subject to the attorney-client privilege or they constitute “attorney work product.”

In the opening motion, Plaintiffs note that the privilege log identified three letters from
attorney George Patrick in Plaintiff Espinoza’s personnel file and six letters from attorney George
Patrick in Plaintiff Zenone’s personnel file. Plaintiffs represent that the privilege log lists these
letters as either subject to the attorney-client privilege or because they constitute attorney work
product. Plaintiffs argue that these objections are without merit and raise several arguments in
support. First, Plaintiffs argue that it is not clear who George Patrick represented, surmising that
he represented the defendant County and neither the attorney nor his client has asserted a privilege.
Plaintiffs cite Federal Rule of Civil Procedure 26(b)(5) which requires the party claiming a privilege
to “describe the nature of the documents . . . in a manner that . . . will enable other parties to assess
the claim.” Second, Plaintiffs argued that it is not apparent how a letter from Attorney Patrick to
the “Claims Deputy, Indiana Dept. of Workforce Development” or “Diane Vie, Prudential
Insurance,” neither of which is a party and neither of which is represented by Attorney Patrick,
qualifies as “trial preparation: materials” as described in Federal Rule of Civil Procedure 26(b)(3);
Plaintiffs argued that the rule is not designed to protect material already provided to someone else.
Third, Plaintiffs argued that there is not sufficient information to establish that Commander
Patterson, Chris McQuillin, Dennis Heaps, and “Sheriff’s Payroll Dept.” are covered by the
attorney-client privilege between Attorney Patrick and his client (County and/or Sheriff Buncich).
Fourth, Plaintiffs argued that there is no showing that the “attachments, related to Zenone’s
unemployment benefits claim and termination pay” fit within the attorney-client privilege since they
appear to be pre-existing documents that were simply provided to Attorney Patrick.
Buncich originally explained in his response brief that Attorney Patrick represented Lake
County and the Lake County Sheriff’s Department in matters of unemployment benefits and that the
privileged letters were written by Attorney Patrick in the course of pending unemployment litigation
against the Lake County Sheriff’s Department. Buncich argued that the documents over which
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privilege was asserted were described with sufficient detail in the privilege log and that compelling
Buncich to disclose the privileged documents would be a serious sanction and one that may be
imposed only if the Court finds bad faith, willfulness, or fault. Plaintiffs asserted in reply that
Buncich’s response does not address Plaintiffs’ specific arguments. See Pl. Reply, p. 3.
In the sur-reply, Buncich explains that Attorney Patrick represented the Lake County Sheriff
and Lake County in matters concerning unemployment benefits. The Lake County Sheriff’s
Department, through Buncich, is asserting the attorney client privilege. Buncich responds to
Plaintiffs’ argument that it is unclear how the letters to the Indiana Department of Workforce
Development and Prudential Insurance qualify as work product by noting that the first word in each
of the entries on the privilege log for the letters is “draft.” Buncich explains that these letters were
not actually sent but rather were letters created in anticipation of litigation concerning
unemployment benefits. Buncich recognizes that, had the letters been sent, they would not be
protected. Having reviewed the documents, the Courts finds that Exhibits 2 and 5 are themselves
labeled as “DRAFT” and that the blanks and lack of signature on Exhibit 9 indicate that it, too, is
a draft. Thus, the documents are protected by the work product privilege, and are not discoverable.
Buncich next argues that the letters from Attorney Patrick to Commander Patterson (Exhs.
1 & 3), Chris McQuillin (Exhs. 4 & 6), and Dennis Heaps (Exh. 8) and the fax to Attorney Patrick
from the Sheriff’s Payroll Department (Exh. 7) are covered by the attorney-client privilege because
those individuals were agents of the Lake County Sheriff’s Department. See Upjohn Co. v. United
States, 449 U.S. 383, 394 (1981); Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007); United
States v. Evans, 113 F.3d 1457, 1462 (7th Cir. 1997); Ormond v. Anthem, Inc., Nos. 1:05-CV-1908,
1:09-cv-798, 2011 WL 2020661, at *2 (S.D. Ind. May 24, 2011). The letters to Commander
Patterson and to Chris McQuillin expressly state at the top that the letters are intended to be
privileged, containing attorney work product and prepared as part of a defense in anticipation of
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litigation. Buncich also argues that these documents contain confidential information regarding
legal advice concerning the termination or employment of Plaintiffs, which were essential to the
preparation for anticipated litigation and contain “mental impressions, conclusions, opinions or legal
theories” of Attorney Patrick and “other representatives of a party concerning litigation.” Def.
Surreply, p. 3 (citing Upjohn, 449 U.S. at 401). Having reviewed these documents, the Court agrees
with Buncich’s characterization of the documents as seeking or providing information necessary to
Attorney Patrick’s provision of legal advice, and finds that they are protected by the attorney-client
privilege and, thus, are not discoverable.
CONCLUSION
Based on the foregoing, the Court hereby DENIES the remaining portion of Plaintiffs’
Motion to Compel [DE 17].
SO ORDERED this 5th day of October, 2012.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES MAGISTRATE JUDGE
cc:

All counsel of record

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