Charvat v. Valente

• Decision Date: 03 March 2015
• Docket Number: No. 12 CV 5746,12 CV 5746
• Citation: 82 F.Supp.3d 713
• Parties: Philip Charvat, on behalf of himself and others similarly situated, Plaintiff, v. Elizabeth Valente, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

82 F.Supp.3d 713

Philip Charvat, on behalf of himself and others similarly situated, Plaintiff

v.Elizabeth Valente, et al., Defendants.

No. 12 CV 5746

United States District Court, N.D. Illinois, Eastern Division.

Signed March 3, 2015

Alexander Holmes Burke, Daniel J. Marovitch, Burke Law Offices, LLC, Chicago, IL, Edward A. Broderick, Broderick Law, P.C., Boston, MA, Matthew P. McCue, Matthew McCue, Law Office of Matthew McCue, Natick, MA, for Plaintiff.

Jeffrey Scott Becker, Darren Brett Watts, Joseph Paul Kincaid, Joshua Erik Bidzinski, Swanson, Martin & Bell, LLP, Chicago, IL, Elliot Scott Wiczer, Foreman Friedman, PA, John M. Sheldon, Wiczer & Sheldon, LLC, Northbrook, IL, Jeffrey Eric Foreman, Catherine J. MacIvor, Foreman Friedman, PA, Miami, FL, Michael James Zink, Evanston, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

MARY M. ROWLAND, United States Magistrate Judge

Plaintiff seeks an order compelling Defendants to fully respond to outstanding discovery requests. Specifically, Plaintiff requests that the Court order Defendants to: (1) respond to all discovery requests relating to Defendant Resort Marketing Group's (RMG's) post-Complaint telemarketing efforts; (2) produce a privilege log describing the specific documents withheld on privilege grounds; (3) produce a transcript of the Richard Borst interview; and (4) participate in an ESI protocol agreed to in advance with Plaintiff's counsel. (Dkt. 248 at 1). For the reasons stated below, the motion is granted in part.

I. DISCUSSION

The Federal Rules of Civil Procedure allow parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). Nevertheless, “requested discovery must be tied to the particular claims at issue in the case.” Sykes v. Target Stores, No. 00 C 5112, 2002 WL 554505, at *3 (N.D.Ill. Apr. 15, 2002) ; see Moore v. Morgan Stanley & Co., No. 07 C 5606, 2008 WL 4681942, at *2 (N.D.Ill. May 30, 2008). Under Rule 37, a party may move to compel discovery where another party fails to respond to a discovery request or where the response is evasive or incomplete. Fed. R. Civ. P. 37(a)(3)–(4). “In ruling on motions to compel discovery, courts have consistently adopted a liberal interpretation of the discovery rules.” Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D.Ill.2006) (citation omitted); see Cannon v. Burge, No. 05 C 2192, 2010 WL 3714991, at *1 (N.D.Ill. Sept. 14, 2010) (“The federal discovery rules are liberal in order to assist in trial preparation and settlement.”); Bond v. Utreras, 585 F.3d 1061, 1075 (7th Cir.2009). “Courts commonly look unfavorably upon significant restrictions placed upon the discovery process” and the “burden rests upon the objecting party to show why a particular discovery request is improper.” Kodish, 235 F.R.D. at 450 ; accord Cannon, 2010 WL 3714991, at *1. Finally, the Court has broad discretion whether to compel discovery. See Kodish, 235 F.R.D. at 450.

A. Post–Complaint Discovery

Defendants refuse to produce documents and respond to interrogatories that concern the time period following the filing of the Complaint because Plaintiff has identified only a single report of post-Complaint telemarketing efforts by Defendants. (Dkt. 266 at 2–3). Plaintiff, for instance, requests “all correspondence, including emails” between the cruise lines and RMG. Whether concerning the time period prior to or following the filing of the Complaint, it is difficult for the Court to imagine a more relevant document request.

The Complaint in this case alleges a continuing violation of the Telephone Consumer Protection Act of 1991 (TCPA). Post–Complaint discovery is relevant to Plaintiff's claims and reasonably likely to lead to discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). This would be true even without the evidence that has been produced demonstrating that a consumer complained about Defendants' telemarketing efforts after this lawsuit was filed. (Dkt. 273 at 2–3 & Ex. 1). It is commonsense that information and documents created after filing the Complaint can be relevant and must be produced. United States v. Capitol Servs., Inc., 89 F.R.D. 578, 586–87 (E.D.Wis.1981) ; see Standard Oil Co. v. F.T.C., 475 F.Supp. 1261, 1270 (N.D.Ind.1979) (“[I]t is simply a fact of life that in major adjudications much discovery will be post-complaint discovery.”); Liggett Grp., Inc. v. Brown & Williamson Tobacco Corp., 116 F.R.D. 205, 206–07 (M.D.N.C.1986) (“In this case, where ongoing injury is alleged, the end date for post-complaint discovery is a matter very much for the discretion of the Court.”).

Defendants' relevance objections based on the fact that the discovery sought postdates the filing of the lawsuit are overruled.¹

B. Privileged Communications

Plaintiff also contends that Defendants have entered into a joint defense agreement and “refused to produce any discovery whatsoever relating to RMG's telemarketing following the filing of this lawsuit on the basis that such information is exempt from discovery under the work-product doctrine [or] the attorney-client privilege.” (Dkt. 248 at 10). Plaintiff requests that Defendants “be ordered to respond to all of Plaintiff's discovery requests without limitation.” Defendants counter that Plaintiff's request is merely a veiled attempt to pierce their privileged communications. (Dkt. 266 at 2–3; see Dkt. 267 at 1, 4). To resolve this dispute, the Court must clarify the appropriate ambit of privilege objections.

Defendants make blanket objections to discovery requests, contending that virtually all post-Complaint information is protected from disclosure by the attorney-client privilege, the work-product doctrine, or the common interest doctrine. (Dkt. 248 at 10 & Exs. I–N; see Dkt. 266 at 2–7; Dkt. 267 at 4–5; Dkt. 273 at 6). It is as if, because counsel has become involved, the corporate Defendants are no longer operating entities subject to the federal rules of discovery. For instance, in response to Request 2, which seeks “all documents that evidence the terms of any oral contract entered between You and RMG,” Royal Caribbean and Norwegian each “objects to the word ‘evidence’ since it would require a subjective determination on the part of [Defendant] as to whether [Defendant's] counsel believe documents ‘evidence’ oral contracts between [Defendant and RMG] that would violate the work-product privilege.” (See Dkt. 248, Ex. K at 17). Reliance on the work product privilege in this context borders on sanctionable conduct and is overruled. Moreover, use of the work product privilege in this context makes the Court question the sincerity of Royal Caribbean's invocation of the work-product doctrine in response to 28 other discovery requests.

To be clear, in this context “evidence” means the same as “show,” “express,” “indicate,” or “demonstrate”—all common English words which require no special knowledge to understand. This request is no different than any other typical document request, which requires an attorney to review for responsiveness, relevance and privilege.

The purpose of the attorney-client privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice. Without that frankness, sound legal advice is impossible, and without informed advice, the ultimate goal of the attorney-client privilege is unattainable.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). “However, since the privilege has the effect of withholding relevant information from the fact-finder, it applies only where necessary to achieve its purpose. Accordingly it protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Thus, “because the privilege is in derogation of the search for the truth, it is construed narrowly.” Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir.2007) (citation omitted); see United States v. Lawless, 709 F.2d 485, 487 (7th Cir.1983) (scope of privilege should be “strictly confined within the narrowest possible limits”); Dexia Credit Local v. Rogan, 231 F.R.D. 268, 272 (N.D.Ill.2004) ( “The Illinois Supreme Court has ... stated that it is the attorney-client privilege, not the duty to disclose, that is the exception and, therefore, the privilege ought to be strictly confined within its narrowest possible limits.”) (citation omitted). As Defendants explain in their motion to compel Plaintiff to respond to deposition questions, “Attorneys do not understand the narrowness of the attorney-client privilege. The privilege protects communications, not facts.” (Dkt. 241 at 13) (emphasis in original) (citing Specht v. Google, Inc., 268 F.R.D. 596, 601 (N.D.Ill.2010) ). Indeed, as Defendants themselves stress, “facts are never privileged. ” (Id. ) (emphasis in original).

The work product doctrine, formally codified in Rule 26, protects from disclosure “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3)(A) ; see Eagle Compressors, Inc. v. HEC Liquidating Corp., 206 F.R.D. 474, 478 (N.D.Ill.2002). The intent of the work-product doctrine “is to protect the adversarial process by providing an environment of privacy in which a litigator may creatively develop strategies, legal theories, and mental impressions outside the ordinary liberal realm of federal discovery provisions.” Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84, 87 (N.D.Ill.1992) ; see Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). However, the commencement of the lawsuit “does not automatically qualify a company's internal reports as work product.” E.E.O.C. v. Commonwealth Edison, 119 F.R.D....