Towne Place Condo. Ass'n v. Phila. Indem. Ins. Co.

• Decision Date: 11 January 2018
• Docket Number: No. 17 C 1561,17 C 1561
• Parties: TOWNE PLACE CONDOMINIUM ASSOCIATION, Plaintiff, v. PHILADELPHIA INDEMNITY INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

284 F.Supp.3d 889

TOWNE PLACE CONDOMINIUM ASSOCIATION, Plaintiff,

v.PHILADELPHIA INDEMNITY INSURANCE COMPANY, Defendant.

No. 17 C 1561

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

Signed January 11, 2018

Andrew Milan Plunkett, Daniel Thomas Loucks, Childress Loucks & Plunkett, Ltd., Scott David Green, The Law Offices of Scott Green, Chicago, IL, for Plaintiff.

James R. Swinehart, Mindy Marie Medley, Clausen Miller P.C., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Jeffrey Cole, UNITED STATES MAGISTRATE JUDGE

The parties in this insurance coverage case, who are also counsel in the case before Judge Feinerman, 17 C 1995, have a dispute about the discoverability of a very substantial number of emails. The parties have agreed that the ruling here is applicable to both cases.

The defendant's position is that its claim of privilege under the attorney-client (or in some instances, work product) privilege insulates the objected to documents from discovery. The plaintiff, with equal vigor, questions the assertion of privilege. The controversy initially resulted from the manner in which the defendant's privilege log was prepared: there were a number of instances in which the author or the recipient, or both, of the withheld document was not revealed on the log, thereby making meaningful review of the claim of privilege impossible. See Crom, LLC v. Preload, LLC , 2017 WL 2408126, at *1 (N.D. Fla. 2017) ; MapleWood Partners, L.P. v. Indian Harbor Ins. Co. , 295 F.R.D. 550, 584 (S.D. Fla. 2013). The defendant claims to have cured those deficiencies through updated privilege logs.

Inadequate privilege logs are a recurring and significant problem in federal litigation. See e.g. , United States ex rel. McGee v. IBM Corp. , 2017 WL 1232616, at *2 (N.D. Ill. 2017) ; Slaven v. Great Am. Ins. Co. , 2014 WL 4470723, at *2 (N.D. Ill. 2014) ; Baxter Travenol Laboratories, Inc. v. Abbott Laboratories , 1987 WL 12919, *1 n. 1 (N.D.Ill. 1987) ("Baxter failed to identify or justify a claim of privilege in many instances and identified each document in such summary fashion that hundreds of hours have been required to evaluate Baxter's claims."). And privilege can be almost as vexing as the litigation itself. See e.g. , Vioxx Prod. Liab. Litig. Steering Comm. v. Merck & Co., Inc. , 2006 WL 1726675, at *2 (5th Cir.2006) (the "district judge undertook the herculean task of personally reviewing 30,000 documents over a two-week period.").

Under Rule 34 of the Federal Rules of Civil Procedure, a party generally has 30 days to respond to a document request, including the production of a privilege log. Compliance with the requirements of Rule 26(b)(5)(A) is not optional, Cormack v. United States , 118 Fed.Cl. 39, 42–43 (2014), and noncompliance can, in the discretion of the court, have serious consequences, including a finding that the claim of privilege has been waived or forfeited. See Equal Employment Opportunity Comm'n v. BDO USA, L.L.P. , 876 F.3d 690, 697 (5th Cir. 2017) ; Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont. , 408 F.3d 1142, 1149 (9th Cir. 2005) ; Kannaday v. Ball , 292 F.R.D. 640, 647 (D. Kan. 2013).

However, most courts are reluctant to find a claimed privilege is automatically waived if a log is not filed within this time frame. See Burlington N. & Santa Fe Ry. Co. , 408 F.3d at 1147–1149. And many have held that a court must make a "case-by-case determination" of whether privilege should be deemed waived: they have required a "holistic" reasonableness analysis, intended to forestall needless waste of judicial time and resources, as well as tactical manipulation of the rules and the discovery process. See Holifield v. United States , 909 F.2d 201, 204 (7th Cir. 1990) ; In re Subpoena to Produce Documents of Clapp, Moroney, Bellagamba, Vucinich, Beeman & Scheley , 2014 WL 3784112, at *3 (N.D. Cal. 2014).

Yet the attorney-client or work product privilege claim can be so insubstantial and obstructive without an appropriate basis that to sustain it would trivialize the privileges themselves. Banks v. Office of Senate Sergeant–At–Arms & Doorkeeper , 236 F.R.D. 16, 21 (D.D.C. 2006). In the end, reliance must be placed on the good faith and skill of counsel, coupled with adherence to the rule requiring the privilege logs be crafted in such a way that at least an initial review will be informative and thus yield meaningful results.

We begin with the general principles applicable to the attorney-client privilege and the work product doctrine as they have long been articulated and applied in cases throughout the Nation.

A.THE ATTORNEY–CLIENT PRIVILEGE

The attorney-client privilege is the oldest of the recognized privileges for confidential communications known to the common law. United States v. Jicarilla Apache Nation , 564 U.S. 162, 131 S.Ct. 2313, 180 L.Ed.2d 187 (2011) ; Jaffee v. Redmond , 518 U.S. 1, 11, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) ; Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Deeply rooted in public policy, In re Ford Motor Co. , 110 F.3d 954, 966 (3d Cir.1997), and playing a "vital role" in the administration of justice, American Nat. Bank and Trust Co. of Chicago v. Equitable Life Assur. Soc. of U.S. , 406 F.3d 867, 878 (7th Cir.2005), it remains a carefully guarded privilege. See Swidler & Berlin v. United States , 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). The privilege's central concern—and its ultimate justification—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 , 449 U.S. at 389, 101 S.Ct. 677.

The privilege extends to confidential communications between counsel and his or her client "[w]here legal advice of any kind is sought ... from a professional legal advisor in his capacity as such." Rehling v. City of Chicago , 207 F.3d 1009, 1019 (7th Cir.2000). See also United States v. Evans , 113 F.3d 1457, 1461 (7th Cir.1997). The question is whether the "primary" or "predominant purpose" of the communication is to render or solicit legal advice. See E.E.O.C. v. BDO USA, L.L.P. , 876 F.3d 690, 695 (5th Cir. 2017) ; In re County of Erie , 473 F.3d 413, 420 (2nd Cir. 2007) ; United States v. Horvath , 731 F.2d 557, 562 (8th Cir. 1984) ; Skyline Wesleyan Church v. California Dep't of Managed Health Care , 322 F.R.D. 571, 584–85, 2017 WL 4227026, at *10 (S.D. Cal. 2017) ; Dansko Holdings, Inc. v. Benefit Tr. Co. , 2017 WL 5593321, at *7 (E.D. Pa. 2017) ; Koumoulis v. Independent Financial Marketing Group, Inc. , 295 F.R.D. 28, 45–46 (E.D.N.Y. 2013) ; SmithKline Beecham Corp. v. Apotex Corp. , 232 F.R.D. 467, 482 (E.D. Pa. 2005).

Thus, the status of the drafter of the supposedly privileged document is not decisive on the question of whether the document is protected. It is for that reason that progress or status reports, investigation summaries, and general updates are generally not privileged merely because they were written by a lawyer to the client. See Koumoulis , 295 F.R.D. at 45–46 ; A & R Body Specialty & Collision Works, Inc. v. Progressive Casualty Ins. Co. , 2013 WL 6044342 at *3 (D. Conn. 2013) ; Navarrete v. Gov't Employee Ins. Co. , 2010 WL 11558228, at *22 (S.D. Fla. 2010) ; Wolf Creek Ski Corp. v. Leavell–McCombs Joint Venture , 2006 WL 1119031, at *2 (D. Colo. 2006) ; In Re Sealed Case , 737 F.2d 94 (D.C.Cir.1984) ("The letter summarizes statements made by third persons to the partnership's attorney, and neither reveals any confidences of the client (the partnership) nor suggests a legal opinion."); United States v. Bonnell , 483 F.Supp. 1070, 1077 (D. Minn. 1979) ("the questioned document does not reveal communications from Cargill to Levine. The document is rather a summary of a meeting attended by third parties.').¹

The same is true of correspondence that merely notifies someone of scheduling matters, SmithKline Beecham Corp. , 232 F.R.D. at 482, or which updates the recipient. The latter do not seek or disclose legal advice and thus, are not protected by the attorney-client privilege. Loguidice v. McTiernan , 2016 WL 4487779, at *16 (N.D.N.Y. 2016). The same is true of routine communications between the attorneys and the claims handlers relating to scheduling and other innocuous status updates. The rule of exclusion also applies to work product claims. Smith v. Scottsdale Ins. Co. , 40 F.Supp.3d 704, 727 (N.D.W. Va. 2014).²

Here, as in most jurisdictions, a claim of privilege generally "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). Accord , Heriot v. Byrne , 257 F.R.D. 645, 667 (N.D. Ill. 2009). Cf. , Am. Nat. Bank & Tr. Co. of Chicago v. Equitable Life Assur. Soc. of U.S. , 406 F.3d 867, 878 (7th Cir. 2005). But see In re Vioxx Prod. Liab. Litig. , 501 F.Supp.2d 789, 815 (E.D. La. 2007) (recognizing that sampling may be an appropriate technique under certain circumstances). The privilege, like all testimonial privileges and all exclusionary rules, comes at a price. Since it makes the search for truth more difficult by preventing disclosure of what is often exceedingly relevant information, the privilege "contravene[s] the fundamental principle that ‘the public ... has a right to every man's evidence,’ " and is therefore strictly construed. University of Pennsylvania v. E.E.O.C. , 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). See also Pierce County, Wash. v. Guillen , 537 U.S. 129, 144–145, 123 S.Ct. 720, 154 L.Ed.2d 610 (2003) ; United States v. Lawless , 709 F.2d 485, 487 (7th Cir.1983) ; Radiant Burners, Inc. v. Am. Gas Ass'n , 320 F.2d 314, 323 (7th Cir. 1963). The privilege is limited...