BLAIR et al v. PROFESSIONAL TRANSPORTATION, INC. et al

Filing 187

ORDER - granting in part and denying in part 170 Motion to Compel. I DENY the Plaintiffs' Motion in that I find that the documents identified in the Defendants' privilege log entries 63, 65-71, 94-95, 97-98, 101-102, 116-19, and 123 are irrelevant and need not be produced. I GRANT the Plaintiffs' Motion in that I find that the Defendants have provided insufficient information to determine whether any remaining documents are subject to a claim of privilege. The Defendants will file all remaining documents in unredacted form within 10 business days of the issuance of this Entry for the Court's in camera review. (See Order.) Signed by Magistrate Judge William G. Hussmann, Jr on 1/29/2015. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
DANESSA V. BLAIR, individually and
on behalf of similarly situated
individuals,
Plaintiffs,
v.
PROFESSIONAL TRANSPORTATION,
INC., and RONALD D. ROMAIN,
individually and as chief executive
officer of Professional Transportation,
Inc.,
Defendants.

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3:14-cv-18-RLY-WGH

ENTRY ON PLAINTIFFS’ MOTION TO
COMPEL PRODUCTION OF DOCUMENTS
This matter is before me, William G. Hussmann, Jr., United States
Magistrate Judge, on Plaintiff Danessa Blair’s Motion to Compel Production of
Documents (Filing No. 170) and Chief Judge Young’s order of reference. The
matter is fully briefed. (Filing No. 170; Filing No. 175; Filing No. 181.) Being
duly advised, I GRANT the Motion in part and DENY it in part.
I.

Background
The Plaintiffs here are current and former employees of Defendant

Professional Transportation, Inc. (PTI). As the basis for their suit, the Plaintiffs
claim that PTI has paid them less than the minimum wage and denied them
overtime pay to which they are entitled under the Fair Labor Standards Act.

See 29 U.S.C. §§ 206, 207. The FLSA permits aggrieved employees to recover
double damages: They may pursue their unpaid overtime wages and the
difference between their actual receipts and the minimum wage to which they
were entitled, and they also may recover an equal sum in the form of liquidated
damages. See 29 U.S.C. § 216.
In its Answer, PTI claims that it has dealt with the Plaintiffs in good faith
and on a reasonable belief that it has complied with the FLSA. (Filing No. 36 at
¶¶ 21–23.) This is important because the FLSA grants courts discretion to
decrease or eliminate statutory liquidated damages awards where they are
satisfied that the defendant acted “in good faith and that he had reasonable
grounds for believing” he complied with the FLSA. See 29 U.S.C. § 260.
By their Motion, the Plaintiffs ask the Court to compel the Defendants to
produce communications between the Defendants and the Crew Hauler’s Trade
Association (CHTA). Specifically, they seek 97 e-mails the Defendants have
withheld as privileged and unedited copies of documents the Defendants have
produced in redacted form.
The parties describe the CHTA as an association of companies (including
PTI) engaged in the business of transporting rail crews to and from train
stations throughout the country. According to the Defendants, the CHTA
formed in May of 2008—a period when the FLSA was in flux—for the purpose
of “advanc[ing] the common public policy and legislative positions of the
Members.” (See Filing No. 170-6 at ECF p. 1; Filing No. 175 at ECF pp. 2, 5.)
Presumably, the Plaintiffs seek these documents to undermine the Defendants’
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good faith defense—that is, to demonstrate that the Defendants monitored
developments in the FLSA and therefore knowingly violated the law.
II.

Legal Standard
A party to litigation is entitled to discover from his adversary “any

nonprivileged matter that is relevant to any party’s claim or defense . . . .” Fed.
R. Civ. P. 26(b)(1). Where federal law decides the case, federal common law
also determines the existence and applicability of any evidentiary privilege.
Fed. R. Evid. 501; see also United States v. BDO Seidman, LLP, 492 F.3d 806,
814 (7th Cir. 2007).
III.

Discussion
The Defendants oppose production on two grounds: The documents

sought are irrelevant to the claims and defenses at issue in this litigation, and,
in any event, they are communications protected by the attorney-client
privilege. I find that most of the documents are relevant for discovery purposes
but require in camera review for claims of privilege to be properly assessed.
A. By the Defendants’ descriptions, most of the documents the
Plaintiffs seek are relevant to the Defendants’ good-faith defense.
To be discoverable, evidence must be “relevant to any party’s claim or
defense . . . .” Fed. R. Civ. P. 26(b)(1). At trial, evidence is relevant if it has
“any tendency” to make a material fact more or less probable. Fed. R. Evid.
401. But even inadmissible evidence is discoverable so long as it “appears
reasonably calculated to lead to the discovery of admissible evidence.” Fed. R.
Civ. P. 26(b)(1).

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The Defendants’ submissions suggest that the bulk of their withheld and
redacted communications are relevant. They tend to indicate that the CHTA
was engaged in the FLSA’s 2008 revision, and such evidence could establish (or
lead to discovery of additional evidence that could establish) that the
Defendants understood the FLSA when they failed to properly compensate the
Plaintiffs.
The Defendants concede that requested documents demonstrate that the
CHTA sought clarification of the FLSA as it stood and sought to persuade
legislators that crew haulers should remain exempt under the revised statute.
(See Filing No. 175 at ECF p. 7.) Several of the Defendants’ privilege log entries
explicitly refer to the FLSA, and others refer directly to legislation. (See, e.g.,
Filing No. 175-1 at entries 6–7, 30, 114–15.) Other entries are less clear but
include plausibly relevant terms like “Wage Hour Investigation” (entry 25),
“Legislative Meeting” (entry 74), “Legislative Effort” (entry 124), and “Legislative
Plan” (entry 127). I therefore find that the Defendants’ privilege log indicates
that most of the documents would be relevant under Rule 26’s loose standard.
The Defendants argue that 20 of the communications in question are
irrelevant because they address administrative matters like the CHTA’s
corporate formation (privilege log entries 66–71, 94–95, 97–98, 101–103), its
tax status (entries 63, 65, 116–19), establishment of a bank account (entry
123), and billing (entries 111–13). By and large, I agree: These documents
would not be likely to constitute or uncover evidence of the Defendants’
engagement with the FLSA.
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But the Defendants have produced four of these documents (entries 103
and 111–13) in redacted form. (See Filing No. 175-2 at ECF pp. 149, 184, 187,
190.) The redactions appear in e-mails plainly referencing the FLSA and
lobbying efforts. To determine that the redacted portions do not contain
relevant evidence, the Court would need to review the documents in camera.
The Defendants also ask the Court to deem any evidence created earlier
than February 11, 2011—three years before the Plaintiffs filed their
Complaint—irrelevant because it would exceed the applicable limitations
period. But, as the Defendants admit, “events that occurred before an
applicable limitations period” may still be relevant and discoverable if they are
“otherwise relevant to issues in the case.” Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 352 (1978), quoted in Filing No. 175 at ECF p. 7. Here, evidence
preceding February of 2011 may well be relevant to the Plaintiffs’ liquidated
damages claims. Therefore, I decline to tether discovery so tightly to a statute
of limitations. To whatever extent this decision clashes with Judge Kocoras’s
opinion in Jarmoc v. Consolidated Electrical Supply, Inc., I respectfully disagree
with that approach. See No. 92 C 3697, 1993 WL 81440, at *3 (N.D. Ill. 1986).
In sum then, the Defendants need not produce the documents identified
in privilege log entries 63, 65–71, 94–95, 97–98, 101–102, 116–19, and 123
because they are irrelevant. I address all remaining documents below.
B. The Court must review the remaining documents to evaluate the
Defendants’ claims of privilege.
The attorney-client privilege “protects communications made in
confidence by a client and client’s employees to an attorney, acting as an
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attorney, for the purpose of obtaining legal advice.” Sandra T.E. v. S. Berwyn
Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010) (citations omitted). To qualify
for the privilege, the Court must find that (1) the client sought legal advice from
his attorney in her capacity as an attorney, (2) attorney and client
communicated for that purpose, and (3) they communicated confidentiality. Id.
(citing United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997)).
“The claim of privilege cannot be a blanket claim; it ‘must be made and
sustained on a question-by-question or document-by-document basis.’” United
States v. White, 950 F.2d 426, 430 (7th Cir. 1991) (quoting United States v.
Lawless, 709 F.2d 485, 487 (7th Cir. 1983)). “Further, because the privilege is
in derogation of the search for the truth, it is construed narrowly.” Evans, 113
F.3d at 1461.
The Defendants concede that, “when an attorney is communicating in
the capacity of a lobbyist and not as an attorney, such communications are not
privileged.” (Filing No. 75 at ECF p. 15 (citing In re Grand Jury Subpoenas
Dated March 9, 2001, 179 F. Supp. 2d 270, 285 (S.D.N.Y. 2001)).) But the
Plaintiffs have not objected to the Defendants’ contention that communications
made for the purpose of obtaining legal advice are privileged even when the
attorney otherwise is engaged in lobbying on the client’s behalf. (See id. at ECF
pp. 15–16.1) In other words, legal advice invokes privilege, even if it comes
from a lobbyist.

1

Citing United States v. Ill. Power Co., No. 99-cv-0833-MJR, 2003 WL 25593221, at *3
(N.D. Ill. Apr. 24, 2003); Vacco v. Harrah’s Operating Co., No. 1:07-CV-0663
(TJM/DEP), 2008 WL 4793719, at *7–8 (N.D.N.Y. Oct. 29, 2008); In re Brand Name

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The party asserting privilege bears the burden of persuading the Court
that privilege applies. Evans, 113 F.3d at 1461 (7th Cir. 1997). That party
must describe each withheld item in a privilege log that enables other parties to
assess the claim of privilege. Fed. R. Civ. P. 26(b)(5)(A). If the privilege log
lacks sufficient information to allow the Court and the requesting party to
determine whether the elements of privilege have been satisfied, the Court may
compel production. See Mold-Masters Ltd. v. Husky Injection Molding Sys. Ltd.,
No. 01 C 1576, 2001 WL 1558303, at *2 (Dec. 6, 2001).
The remaining entries provide the Court with too little information to
thoroughly evaluate the Defendants’ privilege claims. Many entries give no
indication that the evidence involves the communication of legal advice. Entry
64, for example, identifies an e-mail ambiguously entitled, “Rail transportation
issues.” Some entries specifically invoke the phrase “legal advice,” but they are
scarce. (See Entries 74–93, 96.) Given the relatively small number of
documents and the widespread generality of the Defendants’ log, I would prefer
to review the documents before deciding whether they are privileged.2

Prescription Drugs Antitrust Litigation, No. 94 C 897, MDL No. 997, 1995 WL 557412
(N.D. Ill. Sept. 19, 1995).
2

The Defendants have offered an affidavit from attorney David Coburn, whose name
appears in most of the privilege log entries and whose firm the CHTA engaged in 2008.
I note Coburn’s statement that he did not work as a lobbyist during that period and
that the exclusive purpose of his relationship with the CHTA was the provision of legal
advice. But privilege must be established document by document, see White, 950
F.2d at 430, and the Defendants’ log fails to do so.

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IV.

Conclusion
I DENY the Plaintiffs’ Motion in that I find that the documents identified

in the Defendants’ privilege log entries 63, 65–71, 94–95, 97–98, 101–102, 116–
19, and 123 are irrelevant and need not be produced.
I GRANT the Plaintiffs’ Motion in that I find that the Defendants have
provided insufficient information to determine whether any remaining
documents are subject to a claim of privilege. The Defendants will file all
remaining documents in unredacted form within 10 business days of the
issuance of this Entry for the Court’s in camera review.

SO ORDERED this 29th day of January, 2015.

Served electronically on all ECF-registered counsel of record.

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