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

Filing 196

ORDER granting in part and denying in part 170 Motion to Compel. The Defendants will serve the required documents within 15 days of this Entry. (See Order for further details) Signed by Magistrate Judge William G. Hussmann, Jr., on 3/9/2015. (NRN)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
DANESSA V. BLAIR, individually and
on behalf of similarly situated
individuals, et al.,
Plaintiffs1,
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. On
January 29, 2015, I denied Blair’s motion in part by finding certain requested
documents irrelevant. (Filing No. 187.) I also granted the motion in part by
ordering the Defendants to submit the remaining documents for in camera
review. (Id.) Having reviewed the documents, and being duly advised, I
GRANT the Motion in part and DENY it in part.

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Whereas Judge Young has granted conditional class certification (see Filing No. 33), I
use the term “Plaintiffs” throughout this Entry.

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 their Answer, the Defendants claim that PTI 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 involving 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. These documents have been identified at Entries 60–157 of the

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Defendants’ privilege log. (See Filing No. 170 at ECF p. 2 n.2; Filing No. 1751.)
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.)
The documents the Plaintiffs seek were exchanged among the CHTA, its
members, and attorney David Coburn. Presumably, the Plaintiffs seek these
documents to undermine the Defendants’ 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). The party asserting privilege bears the burden of
persuading the Court that privilege applies. United States v. Evans, 113 F.3d
1457, 1461 (7th Cir. 1997).

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III.

Discussion
The Defendants have asserted both relevance and the attorney-client

privilege as bases for indiscoverability. I find that some of the Defendants’
submissions are irrelevant and that some are privileged. I find that others are
relevant but are not privileged and therefore must be produced. And I find that
others contain both discoverable and indiscoverable content that must be
produced but may be produced in redacted form.
A. Relevance
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).
The Defendants need not produce Documents 91–93, 96, 111–13, 128–
30, 136–43, and 148–49 because they are irrelevant. These documents deal
exclusively with administrative matters like billing or scheduling and therefore
are not likely to lead the plaintiffs to any evidence that bears on their claims or
PTI’s defenses.
The remaining documents include content relevant to this litigation.
B. Attorney-Client 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 confidentially. Id.
(citing Evans, 113 F.3d at 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. 175 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. 15–16.2) In other words, legal advice invokes privilege, even if it comes
from a lobbyist.

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
2

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1. Privileged Documents
Many of the documents the Defendants have withheld or redacted are
not privileged because they do not include communications made for the
purpose of giving or receiving legal advice. Communication between an
attorney and her client is privileged only if the parties are communicating for
the purpose of giving or receiving legal advice. Sandra T.E, 600 F.3d at 618.
Documents 60–61, 64, 72–73, 75, 78–79, 84, 86–88, 90, 104–110, 114–273,
131–35, 144–47, 150–55, and 157 deal strictly with lobbying efforts: They
either outline a lobbying strategy, solicit information to be used in lobbying, or
relay the results of a lobbying effort. Therefore, the Defendants must produce
these documents in unredacted form.
2. Nonprivileged Documents
The remaining documents (76–77, 80–83, 85, 89, and 100) are protected
by the attorney-client privilege. These documents consist of legal advice or
information provided for the purpose of receiving legal advice. Further, they
appear to be confidential communications: The addressees of these documents
appear to include only counsel for the CHTA, representatives of the CHTA’s
member companies, and counsel for the individual member companies. The
Plaintiffs acknowledge that David Coburn—the attorney whose

Prescription Drugs Antitrust Litigation, No. 94 C 897, MDL No. 997, 1995 WL 557412
(N.D. Ill. Sept. 19, 1995).
I note that Document 127 states the holding of a judicial decision, but it does not
present the holding as legal advice. Rather, it presents the holding to give context to a
discussion about lobbying strategy.
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communications are in question—represented the CHTA. (See Filing No. 170 at
¶¶ 12, 19.) The Plaintiffs also acknowledge that the CHTA was an association
of corporations united for the same purpose: advancing their collective
legislative and public policy positions. (Id. at ¶¶ 1, 18.) So there seems to be
no argument that these documents were distributed to anyone but attorney or
client.
To whatever extent the Plaintiffs argue that these documents exceed the
bounds of an attorney-client relationship, I find that privilege applies through
the common interest exception.
In federal proceedings, the common interest exception entitles a party to
avail itself of an evidentiary privilege even after it has shared a document with
a third party. BDO Seidman, 492 F.3d at 814–15. Generally, a party waives
any claim that a document is privileged when she shares it with a third party.
E.g., Bitler Inv. Venture II, LLC v. Marathon Ashland Petroleum LLC, No. 1:04CV-477, 2007 WL 465444 at *2 (N.D. Ind. Feb. 7 2007). The common interest
exception negates waiver and allows a party to invoke privilege where she has
shared a document only in confidence and for the purpose of advancing a
shared legal interest. BDO Seidman, 492 F.3d at 815–16.
The exception recognizes that parties with common objectives often
benefit by working together and that those benefits can be secured only if the
parties’ collective communications are afforded the same protection as their
communications with their individual attorneys. See, e.g., id. at 816; United
States v. Schwimmer, 892 F.2d 237, 243–44 (2d Cir. 1989); United States v.
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McPartlin, 595 F.2d 1321, 1336 (7th Cir. 1979). It also acknowledges that the
public benefits from greater conformity to the law and less frequent litigation
when parties can pool their efforts and resources to ensure compliance. See
BDO Seidman, 492 F.3d at 816.
A party asserting the common interest exception therefore must
articulate a qualifying legal interest shared by each party to the
communication. The shared interest must be a legal interest. E.g., BASF
Aktiengesellschaft v. Reilly Indus., Inc., 224 F.R.D. 438, 442 (S.D. Ind. 2004).
An entirely commercial or financial interest does not qualify. Id. But, litigation
need not be initiated or even anticipated for an entity to hold a qualifying legal
interest. BDO Seidman, 492 F.3d at 816. Indeed, the Seventh Circuit has
recognized that complying with the law and avoiding litigation are valid legal
interests. Id.
Simply identifying a legal interest does not entitle a litigant to the
protections of the common interest exception. She must demonstrate that
each party’s interest is identical. Grochocinski v. Mayer Brown Rowe & Maw
LLP, 251 F.R.D. 316, 327 (N.D. Ill. 2008); Draus v. Healthtrust, Inc.—The Hosp.
Co., 172 F.R.D. 384, 391 (S.D. Ind. 1997) (citing Duplan Corp. v. Deering
Millliken, Inc., 397 F. Supp. 1146, 1172 (D.S.C. 1974)). She also must
demonstrate that the parties cooperated to advance their identical legal interest
and that the document requested was shared in confidence and for the purpose
of advancing their joint interest. BDO Seidman, 492 F.3d at 815–16;
Schwimmer, 892 F.2d at 244. Finally, because the common interest doctrine is
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an exception to the basic rule of waiver and not a freestanding privilege, the
requestee also must show that the document was protected by another
privilege before she shared it with the commonly interested parties.
Grochocinski, 251 F.F.D. at 327; Bitler, 2007 WL 465444, at *3.
The documents I have identified as privileged qualify for protection under
the common interest exception. Again, the Plaintiffs acknowledge that David
Coburn represented the CHTA and that the CHTA was an association of
corporations. As I explained above, these communications were made for the
solicitation or dissemination of legal advice, and they were shared only between
Coburn, the CHTA’s members, and their individual attorneys.
The remaining question, then, is whether the CHTA’s member
institutions shared a common legal interest, and I find that they did.
Advancing their legislative positions was a common interest, but it was not
their only common interest. The communications between Coburn and the
CHTA’s personnel indicates that they shared common legal interests,
including:


understanding their liabilities and obligations under proposed
changes to the law (Documents 74, 76, 77, 80, 89, 99, 100,
103);



understanding and complying with the law as it stood
(Documents 80–83, 85, 103); and



complying with the law in forming the corporation and
conducting their lobbying efforts (Documents 62, 99, 100).

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Each of the documents that I find would be privileged or redactable relates to
one of those interests. Therefore, the common interest exception resolves any
threat to these documents’ protection.
C. Redactable Documents
The Defendants have withheld many documents in which only segments
of the communications relate to the dissemination or receipt of legal advice.
The Defendants must produce the following documents but may redact
privileged communications as follows:


Document 62: The Defendants may redact:
o all but the first two sentences of the first full
paragraph on page 3; and
o the final paragraph on page 3.



Document 74: The Defendants may redact the second
paragraph on page 1.



Document 99: The Defendants may redact:
o the first two bulleted paragraphs and the final
paragraph of Bob Tevault’s e-mail on page 1;
o the entirety of David Coburn’s e-mail beginning on
page 1 and ending on page 2;
o the five bulleted paragraphs in Bob Tevault’s e-mail
on page 2; and
o the remainder of the document beginning with
David Coburn’s e-mail on page 3.



Document 103: The Defendants may redact:
o the first sentence of the first full paragraph beginning on
page 2;
o the entirety of the second full paragraph beginning on page
2; and
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o the remainder of the document beginning with David
Coburn’s June 14 e-mail beginning on page 2.
For the reasons I explained above, these redactable portions would be subject
to the common interest exception.
D. Documents with Multiple Messages
As a final point of clarification, I note that most of the Defendants’
submissions include chains of several e-mails. Where a document includes
only “new” material (material not presented in an earlier document), my
analysis applies to the entire document unless I have specified otherwise.4
Where a document contains both “new” and “old” material (material reproduced
from an earlier document), my analysis applies only to the “new” material
unless I have specified otherwise. To the extent any content I have deemed
irrelevant or privileged reappears in a subsequent document, the Defendants
may redact that content from reappearances.5
IV.

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

in the Defendants’ privilege log as Documents 91–93, 96, 111–13, 128–30,
136–43, and 148–49 are irrelevant and need not be produced. I further DENY

4

For example, Document 61 includes two e-mails, neither of which appeared in
Document 60. Therefore, my instruction to produce Document 61 applies to both emails.
5

For example, Document 84 includes a “new” e-mail (Fln Neve’s message sent June
11 at 5:07 P.M.) but also reproduces several other messages—including Documents 77
and 80–82, which I have deemed privileged. My finding that Document 84 is relevant
but not privileged applies to the first e-mail. The Defendants must produce that
message in its entirety but may redact the reproduction of Documents 77 and 80–82
consistent with my instructions.

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the Plaintiffs’ Motion in that I find that Documents 76–77, 80–83, 85, 89, and
100 are protected by the attorney-client privilege and need not be produced.
I GRANT the Plaintiffs’ Motion in that I compel the Defendants to
produce Documents 60–61, 64, 72–73, 75, 78–79, 84, 86–88, 90, 104–110,
114–27, 131–35, 144–47, and 150–57, which are relevant but not protected by
privilege.6 I further GRANT the Plaintiffs’ Motion in that I compel the
Defendants to produce Documents 62, 74, 99, and 103, but I authorize the
Defendants to redact those documents consistent with this Entry.
The Defendants will serve the required documents within 15 days of this
Entry.
SO ORDERED this 9th day of March, 2015.

Served electronically on all ECF-registered counsel of record.

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Remembering, of course, that the Defendants may redact the portions of these
documents containing privileged segments of Documents 62, 74, 76–77, 80–83, 85,
89, 99–100, and 103.

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