American Family Mutual Insurance Company v. Electrolux Home Products, Inc.
Filing
153
ORDER granting in part and denying in part 112 Motion to Compel by Defendant Electrolux Homes Products, Inc. Signed by Magistrate Judge Stephen L. Crocker on 7/14/2014. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
AMERICAN FAMILY MUTUAL INSURANCE
COMPANY, et al.,
Plaintiffs,
v.
ORDER
11-cv-678-slc
ELECTROLUX HOME PRODUCTS, INC.,
Defendant.
Defendant Electrolux Home Products, Inc., has moved for an order pursuant to Fed. R.
Civ. P. 37 compelling plaintiffs to produce documents that it says plaintiffs have wrongfully
withheld from discovery under the guise of the attorney-client or work-product privileges. Dkt.
112. After a hearing on March 5, 2014, I ordered plaintiffs to re-review their claims of privilege
and to submit for review, in camera, the documents for which they were still claiming privilege.
Plaintiffs have complied with the court’s order and submitted what appears to be a culleddown set of documents for which they are seeking protection. Although plaintiffs’ initial
privilege log identified a large number of documents that they alleged were work product—
leading to a robust debate during the telephonic conference–-their current logs assert the work
product privilege for a smaller number of documents. Plaintiffs now deem the bulk of the
documents to be privileged attorney-client communications.
I have reviewed each of the documents submitted by plaintiffs in accordance with the
relevant legal standards. Having done so, I conclude that plaintiffs have met their burden of
establishing privilege with respect to some, but not all, of the documents submitted in camera,
as set out specifically in the table below.
I. Legal Standards
A. Attorney–Client Privilege
“The attorney-client privilege is the oldest of the privileges for confidential
communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389
(1981). The attorney-client privilege prohibits the compelled disclosure of “confidential
communications between a client and an attorney for the purpose of obtaining legal advice.”
Denius v. Dunlap, 209 F.3d 944, 952 (7th Cir. 2000). Not all communications between the
attorney and the client are privileged; “the privilege is in derogation of the search for the truth
and, therefore, must be strictly confined.” In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th
Cir. 2000). The privilege adheres “only if [the communications] constitute legal advice, or tend
directly or indirectly to reveal the substance of a client confidence.” United States v. Defazio, 899
F.2d 626, 635 (7th Cir. 1990). The attorney-client privilege only shields communications that
were intended to be confidential, so communications made to an attorney in the presence of a
third party or made with the intent that they will be disclosed to a third party are not privileged.
United States v. Evans, 113 F.3d 1457, 1462 (7th Cir. 1997); United States v. White, 950 F.2d
426, 430 (7th Cir. 1991).
The Seventh Circuit has adopted Professor Wigmore's formulation of the attorney-client
privilege:
(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.
Evans, 113 F.3d at 1461 (quoting 8 John Henry Wigmore, Evidence in Trials at Common Law §
2
2292 (1961)). “The party seeking to invoke the privilege bears the burden of proving all of its
essential elements,” id., and “each of these elements must be established as to each document,
as the mere existence of an attorney-client relationship is not sufficient to cloak all
communications with the privilege.” Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D.
84, 86 (N.D. Ill. 1992).
B. Work–Product Doctrine
The work-product doctrine gives qualified protection to documents prepared in
anticipation of litigation. Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1118 (7th
Cir. 1983). The doctrine is broader in scope than the attorney-client privilege. United States v.
Nobles, 422 U.S. 225, 238 n. 11 (1975) (citing Hickman v. Taylor, 329 U.S. 495 (1947)).
Although the work product privilege developed to protect the work of an attorney from
encroachment by opposing counsel, Binks, 709 F.2d at 1118, its protection has been extended
to the work of both lawyers and nonlawyers. Fed. R. Civ. P. 26(b)(3) advisory committee's note
(“[T]he weight of authority affords protection of the preparatory work of both lawyers and
nonlawyers ….”). See also Logan v. Commercial Union Ins. Co., 96 F.3d 971, 977 (7th Cir. 1996)
(upholding work product protection of investigation report created by insurance company in
anticipation of litigation); In re Cendant Corp. Securities Litigation, 343 F.3d 658 (3d Cir. 2003)
(recognizing that litigation consultants retained to aid in witness preparation may qualify as
non-attorneys who are protected by the work product doctrine, including opinion work product
doctrine).
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The work-product doctrine protects (1) “documents and tangible things otherwise
discoverable” (2) “prepared by or for another party or by or for that other party's representative”
(3) “in anticipation of litigation or for trial.” Fed. R. Civ. P. 26(b)(3).
The threshold
determination in a case involving a claim of work product privilege is whether the material
sought to be protected from discovery was prepared in anticipation of litigation. Binks, 709 F.2d
at 1118. “The mere fact that litigation does eventually ensue does not, by itself, cloak materials
prepared by an attorney with the protection of the work product privilege; the privilege is not
that broad.” Id. Rather, the test is whether the work was prepared “because of” the prospect of
litigation or that “some articulable claim, likely to lead to litigation,” had arisen at the time of its
preparation. Id. at 1120 (citations omitted).
In Logan v. Commercial Union Ins. Co., 96 F.3d 971, 977 (7th Cir. 1996), the court noted
that this line is not always easy to draw when one party is an insurance company:
While much of the paperwork generated by insurance companies
is prepared with an eye toward a possible legal dispute over a
claim, it is important to distinguish between ‘an investigative
report developed in the ordinary course of business’ as a
precaution for the ‘remote prospect of litigation’ and materials
prepared because ‘some articulable claim, likely to lead to litigation
... ha[s] arisen.’ (citing Binks, 709 F.2d at 1120).
Unlike the attorney-client privilege, a party may discover certain documents protected
by the work-product doctrine by showing “substantial need” and inability to obtain equivalent
information “without undue hardship”. Fed. R. Civ. P. 26(b)(3). “Opinion” work product,
however, is not discoverable. Id.
Such materials include documents revealing “mental
impressions, conclusions, opinions or legal theories”. Id.
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II. Findings Re: Claims of Privilege
Having applied the above tests to the documents submitted by plaintiffs, I find that the
documents listed below are not privileged and must be disclosed. Documents not so listed are
privileged and need not be disclosed.
File Name
Docs for In-Camera Review
Redacted Log Note Entries
Blake
ICR01-04 (listed on itemized
sheet as 024-27)
-pgs. 21-22, January 25, 2011 entries by
Gavinski designated as work product (4
total)
Brossard
ICR01-06, 09
-pg. 2, May 10, 2012 entry by Noles
-pg. 2, May 30, 2012 entry by Roble
-pg. 11, Oct. 19, 2011 entry by Roble
Donahue1
ICR04, 06, 07-08, 012-017
Freeman2
ICR01-04, 14-45, 50
n/a
-pg. 6, May 10 and May 22 entries by
Noles
-pg. 18, Aug. 3 entry by Gregory
-pg. 20 July 20, 2011 entry by Gregory
-pg. 31 May 18, 2011 entry by Gregory
Holt
ICR07, 010-11, 14, 15, 17,
18-19, 20
Kucharski
n/a
ICR 02, 03, 04, 05, 09-10
-pg. 2, May 10, 2012 by Noles
-pg. 5, Nov. 7, 2011 entry by Scheib
-pg. 20, March 14, 2011 entry by Scheib
-pg. 21, March 8-9 email exchange
between Scheib and Perla
pg. 22, March 9, 2011 note by Scheib
1
The cover sheet that plaintiffs provided with the Donahue file indicates that there are three
additional documents (Donahue 780-782) from which it has redacted information on the ground that
it is privileged work product. However, these documents are not in the file provided to the court.
2
The Bates numbers for the in-camera review documents on plaintiffs’ itemized log do not match up
with the bates numbers on the actual documents provided. I have used the numbers as they appear on
the actual documents.
5
Larson
ICR 02-08, 12, 14
-pg. 2, entry on June 29, 2012 by
Kaetterhenry and July 24, 2012 entry by
Roble
-pg. 6, Oct. 19, 2011 entry by Roble
-pg. 12, entries on Oct. 13, 2010 (3) and
November 3, 2010 (1) (4 total)
-pg. 38, Nov. 5, 2009 entry by Roble
McCants
-pg. 4, Nov. 27, 2012 entry by
Kaetterhenry
-pg. 8, Oct. 23, 2012 entry by
Kaetterhenry
-pg. 10, Oct. 12, 2012 entry by
Kaetterhenry
n/a
ORDER
IT IS ORDERED that the motion of defendant Electrolux to compel discovery is
GRANTED IN PART and DENIED IN PART as set forth above. Plaintiffs have until July 21,
2014 to produce the documents listed in the table above to defendant. If there are outstanding
discovery issues not addressed in this order, the parties should bring them promptly to the
court’s attention.
Entered this 14th day of July, 2014.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge
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