Glenwood Halsted LLC v. Vill. of Glenwood

• Decision Date: 11 January 2013
• Docket Number: No. 11-CV-6772,11-CV-6772
• Parties: GLENWOOD HALSTED LLC, an Illinois limited liability company, Plaintiff, v. VILLAGE OF GLENWOOD, an Illinois municipal corporation, KERRY DURKIN, both individually and officially as the Mayor of the Village of Glenwood, KEVIN WELSH, both individually and as the building inspector and employee of the Village of Glenwood. Defendants.
• Court: U.S. District Court — Northern District of Illinois

GLENWOOD HALSTED LLC, an Illinois limited liability company, Plaintiff,

v.VILLAGE OF GLENWOOD, an Illinois municipal corporation, KERRY DURKIN, both individually andofficially as the Mayor of the Village of Glenwood, KEVIN WELSH,

both individually and as the building inspector and employee of the Village of Glenwood. Defendants.

No. 11-CV-6772

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Dated: January 11, 2013

Judge Charles P. Kocoras

Magistrate Judge Arlander Keys

MEMORANDUM OPINION AND ORDER

Currently before the Court is Plaintiff's Motion to Compel In Camera Inspection of Documents Withheld on Privilege Grounds. Plaintiff is a company that owns a shopping center complex (the "Shopping Center") in Glenwood, Illinois. Plaintiff alleges that, beginning in 2008, Defendants began to scheme to diminish the value of the shopping center and force Plaintiff to sell it to Glenwood or Defendants' friends at a substantially reduced price. During discovery, Defendants initially refused to produce 17 documents, claiming that they fall within the ambit of either the attorney-client privilege or the deliberative process privilege. Defendants now concede that all or part of at least 10 documents should not have been withheld, however they maintain that the rest still fall within one of the two privileges. Plaintiff's contendthat Defendants fail to meet their burden of proving the documents are entitled to such protection. For the reasons set forth below, Plaintiff's motion is granted in part, and denied in part.

Background

Plaintiff alleges that, between 2008 and 2011, Defendants sought to diminish the value of the Shopping Center and force Plaintiff to sell it at a substantially reduced price by influencing Plaintiff's existing and prospective tenants to leave the Shopping Center or to not rent form Plaintiff. During discovery, Plaintiff requested Defendants to produce several documents for an in camera inspection by the Court and has asked the Court to order Defendants to produce any non-privileged documents. In the Response, filed on December 10, 2012, Defendants agreed to voluntarily produce several documents in their entirety.¹ However, Defendants maintain that the rest of the documents are shielded by either the attorney-client privilege, the deliberative process privilege, or a combination thereof. Plaintiff contends that the attorney-client privilege's narrow scope is not applicable to documents such as those herein. Moreover, Plaintiff argues the deliberative process privilege is additionally inapplicable for several reasons, including that itonly shields government decision makers. The Court will address each document in turn.

Discussion

A. Attorney-Client Privilege

The attorney-client privilege protects confidential communications between a client and his attorney for the purpose of obtaining legal advice. Acosta v. Target Corp., 281 F.R.D. 314, 321 (N.D. Ill. 2012); Square D Co. v. E.I. Electronics, Inc., 264 F.R.D. 385, 389 (N.D. Ill. 2009). In assessing whether the privilege applies, "the focus must always remain on whether confidential legal advice is revealed in a document." Smithkline Beecham Corp. v. Apotex Corp., 193 F.R.D. 530, 537 (N.D. Ill. 2000).

The Seventh Circuit has stated that the attorney-client privilege applies only where the party seeking to assert the privilege establishes the following: (1) that legal advice of any kind was sought (2) from a lawyer in his capacity as such, (3) the communications related to that purpose, (4) they were made in confidence (5) by the client and/or his agent, (6) were at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless waived. United States v. White, 950 F.2d 426, 430 (7th Cir.1991) (noting that communications are privileged only if the statements do, in fact, reveal the substance of a confidential communication.)

"The doctrine is a common law privilege that can be explicitly or implicitly waived by the client and is subject to a number of restrictions and exceptions." Id. Because the attorney-client privilege protects only confidential communications, any disclosure of privileged communications to individuals outside the attorney-client relationship destroys the privilege. Id. Burden-Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003) ("disclosure to a third-party almost invariably surrenders the privilege;" privilege over a document prepared by the Intergovernmental Risk Management Agency, an inter-governmental body, was waived by disclosure to the defendant mayor).

The burden of establishing the essential elements of the attorney-client privilege, including the fact that the document was not disclosed to non-privileged recipients, rests with Defendants, as the party asserting the privilege. Acosta, 281 F.R.D. at 321-22; Smithkline Beecham, 193 F.R.D. at 534. Moreover, merely sending a communication to an attorney does not cloak a document in the attorney-client privilege. Stafford Trading, Inc. v. Lovely, No. 05-C-4868, 2007 WL 611252 (N.D. Ill. Feb. 22, 2007).

Additionally, documents prepared for business purposes or for the purpose of obtaining advice on "political, strategic, or policy issues" are not protected by the attorney-client privilege. Evans v. City of Chicago, 231 F.R.D. 302, 312-14 (N.D. Ill. 2005)(communications between governor and governor's counsel reflecting political advice, not legal advice, were not privileged). "While it is true that solely personal or business advice is not protected by the attorney-client privilege, legal advice relating to business matters clearly is." Stafford Trading, Inc., 2007 WL 611252, at *2.

B. Deliberative Process Privilege

The deliberative process privilege applies to pre-decisional "communications that are part of the decision-making process of a governmental agency, and covers documents that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which governmental decisions and policies are formulated." Lawrence E. Jaffe Pension Plan v. Household Int'l, Inc., 239 F.R.D. 508, 514 (N.D. Ill. 2006). The purpose of the privilege is to protect "open and frank discussion among" government decision makers. Id. at 514-15. "To fall within the privilege, material must relate to the formulation or exercise of agency policy oriented judgment." Allen v. Chicago Transit Authority, 198 F.R.D. 495, 502 (N.D. Ill. 2001).

A party may support a deliberative process privilege claim by meeting three requirements: (1) the department head must make a formal claim of privilege; (2) the responsible official must demonstrate, typically by affidavit, precise and certain reasons for preserving confidentiality; and (3) the official mustspecifically identify and describe the documents. Lawrence E. Jaffe, 239 F.R.D. at 515. If these requirements are met, the burden shifts to the party seeking disclosure to show a "particularized need" for the documents." Id. This requires consideration of: (1) the relevance of the documents; (2) the availability of other evidence on the subject; (3) the government's role in the litigation; (4) the seriousness of the litigation and the issues involved; and (5) the degree to which disclosure would chill future deliberations. Id. at 515.

I. Document 151

Document 151 is a May 14, 2011 e-mail from Kerry Durkin ("Mayor Durkin"), the Mayor of the Village and a defendant, to: (1) John Donahue ("Mr. Donahue"), the Village's in-house, corporation counsel; (2) Donna Gayden ("Ms. Gayden"), the Village's Administrator and a former defendant; (3); Kevin Welsh ("Mr. Welsh"), the Village's Fire Department Chief, Building Department Director and a defendant; (4) Patrick McAneney "Mr. McAneney"), the Village's Public Works Director, and (5) Ed Tunelius ("Mr. Tunelius"), the Village's Engineer.

Defendants contend that this e-mail is shielded both by the attorney-client privilege and the deliberative process privilege. With regard to the attorney-client privilege, Defendants argue that because Mayor Durkin sent it in an effort to seek legal advice from John Donahue, the Village's in-house counsel, relatingto a variety of topics, including the legal hookup requirements for sewers, the ownership of sewers, the legality of certain courses of action towards the Save-A-Lot, a prospective grocer tenant of Plaintiff, as well as how certain courses of action could affect potential eminent domain proceedings by the Village against Plaintiff, that it is protected. Defs.' Resp. 4-7.

Plaintiff argues that the attorney-client privilege is not available because Mr. Tunelius, the Village Engineer, was a third-party recipient of the e-mail, and there is no indication that his presence helped facilitate legal advice from counsel to client. Moreover, Plaintiff argues that, during the timing of the e-mail, the Village was beginning to pursue eminent domain of the Shopping Center and it is unlikely an engineer assisted in the provision of legal advice on that subject. Pl.'s Mot. 6. The Court agrees and finds that Defendants have not met their burden of proving this e-mail protected by the attorney-client privilege, especially in light of its third-party disclosure to the Village Engineer, who would have not been able to render any legal advice on the prospective tenancy of the Shopping Center nor the process of eminent domain proceedings.

Next, Defendants argue that, if the attorney-client privilege is unavailable, the e-mail is nonetheless protected by the deliberative process privilege, as the e-mail is predecisional and relates to a discussion of a potential course of action towardsthe prospect of Save-A-Lot leasing space with Plaintiff. Defs.' Resp. 6. The e-mail is deliberative and opens up policy discussion about the Village's position towards a Save-A-Lot and eminent domain proceedings. However, the Court disagrees as Mr. Tunelius is not a government decision maker, which the privilege specifically seeks to...