CASTELINO v. ROSE-HULMAN INSTITUTE OF TECHNOLOGY

Filing 219

ORDER ON MOTION FOR PROTECTIVE ORDER - Accordingly, Plaintiff's Second Motion for Protective Order [Dkt. 107 ] is DENIED. The Court ORDERS Plaintiff to respond to Defendant's discovery and provide a privilege log that is fully compl iant with the requirements of Fed. R. Civ. P. 26(b) on or before April 9, 2018. Plaintiff should be aware that the failure to produce an adequate log in response to this Order may result in a waiver of the privilege. Surgery Ctr. at 900 N. Mich igan Ave., LLC v. Am. Physicians Assurance Corp., Inc., 317 F.R.D. 620, 631-32 (N.D. Ill. 2016). Plaintiff's Second Motion for Extension of Time [Dkt. 170 ] and Third Motion for Extension of Time to Indefinite [Dkt. 187 ] relating to deadlines for the production of Plaintiff's privilege log are DENIED AS MOOT (SEE ORDER FOR ADDITIONAL INFORMATION). Signed by Magistrate Judge Mark J. Dinsmore on 3/27/2018. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JUSTIN CASTELINO,

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Plaintiff,
v.
ROSE-HULMAN INSTITUTE OF
TECHNOLOGY,
Defendant.

No. 2:17-cv-00139-WTL-MJD

ORDER ON MOTION FOR PROTECTIVE ORDER
This matter is before the Court on Plaintiff’s Second Motion for Protective Order. [Dkt.
107.] Plaintiff asserts Defendant’s Requests for Production seek documents protected by
attorney-client privilege and work product doctrine. 1 For the reasons set forth below, the Court
DENIES Plaintiff’s Motion.
Defendant’s Request for Production seeks four categories of communications:
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Communications related to this lawsuit between Plaintiff’s family members and
Plaintiff; all communications between Plaintiff’s family members and his current
counsel Mr. Thrasher; and all communications between Plaintiff’s family
members and his former counsel, Ms. Ciobanu.

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Communications between Plaintiff and Mr. Thrasher in which a third party was
included on the communication.

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Communications between Plaintiff and Ms. Ciobanu in which a third party was
included on the communication.

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Communications between Mr. Thrasher and Ms. Ciobanu in which a third party
was included on the communication.

[Dkt. 108-1.]

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Plaintiff also inexplicably asserts an argument the documents are protected by psychotherapist/patient privilege. As
none of these requests seek medical records or are directed to a medical provider, this argument appears to be
misdirected.

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Plaintiff asserts a blanket claim of privilege over the communications on the basis that
some of the individuals are also part of Plaintiff’s “legal team.” Specifically, Marita Castelino
(Plaintiff’s mother) is a paralegal who works for her husband (Plaintiff’s step-father), Heath
Harte, an attorney. Plaintiff has asserted that Maria Castelino, Mr. Harte, and Mr. Harte’s legal
intern, Jessica Pinto (who also is Plaintiff’s fiancé), work together with Plaintiff’s counsel to
provide legal advice to Plaintiff. Consequently, Plaintiff’s counsel asserts “every communication
between us, and between and among them, relative to the subject matter of this case is privileged
as attorney/client confidence.” [Dkt. 108 at 4.] Plaintiff’s counsel further asserts that every
communication he has ever had with any of these individuals is, by definition, Plaintiff counsel’s
work product. Id.
Plaintiff’s argument takes too broad a view of attorney-client privilege and the work
product doctrine. Moreover, a claim of privilege cannot be a blanket claim, but must be made
and established on a document-by-document basis. Allendale Mut. Ins. Co. v. Bull Data Sys.,
Inc., 145 F.R.D. 84, 86 (N.D. Ill. 1992). The scope of the privilege is narrow, because it is a
“derogation of the search for truth.” Id. (citing In re Walsh, 623 F.2d 489, 493 (7th Cir.1980)).
Each of the elements of the privilege must be established as to each document, as the mere
existence of an attorney-client relationship is not sufficient to cloak all communications with
attorney-client privilege. Ohio–Sealy Mattress Mfg. Co. v. Kaplan, 90 F.R.D. 21, 28
(N.D.Ill.1980).
While there may exist documents responsive to the requests that are privileged, the
requests also seek categories of relevant documents that are unlikely to be privileged (such as
communications between Plaintiff and his family members). Plaintiff must assert privilege
objections specific to each responsive document in a privilege log. Under Fed. R. Civ. P. 26(b), a

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party withholding documents on the basis of privilege must produce a privilege log that is
sufficiently detailed to enable the other party to assess the claim. Courts in the Seventh Circuit
have required that a privilege log identify “for each separate document the following
information: the date, the author and all recipients, along with their capacities, the subject matter
of the document, the purpose for its production and a specific explanation of why the document
is privileged.” Muro v. Target Corp., No. 04 C 6267, 2006 WL 3422181, at *2 (N.D. Ill. 2006).
Plaintiff appears to understand his obligation to provide a privilege log. On multiple occasions,
Plaintiff has requested that the Court extend an agreed-upon deadline to do so.
Accordingly, Plaintiff’s Second Motion for Protective Order [Dkt. 107] is DENIED.
The Court ORDERS Plaintiff to respond to Defendant’s discovery and provide a privilege log
that is fully compliant with the requirements of Fed. R. Civ. P. 26(b) on or before April 9, 2018.
Plaintiff should be aware that the failure to produce an adequate log in response to this Order
may result in a waiver of the privilege. Surgery Ctr. at 900 N. Michigan Ave., LLC v. Am.
Physicians Assurance Corp., Inc., 317 F.R.D. 620, 631–32 (N.D. Ill. 2016).
Plaintiff’s Second Motion for Extension of Time [Dkt. 170] and Third Motion for
Extension of Time to Indefinite [Dkt. 187] relating to deadlines for the production of Plaintiff’s
privilege log are DENIED AS MOOT.
SO ORDERED.

Dated: 27 MAR 2018

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Distribution:
Holly A. Reedy
WILKINSON GOELLER MODESITT WILKINSON & DRUMMY
[e-mail]
John Thrasher
JOHN THRASHER, J.D.
[e-mail]
Sarah Luise Wachala
WILKINSON GOELLER & MODESITT
[e-mail]

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