United States District Court, N.D. Indiana, Hammond Division, Lafayette
JANE DOE, individually and as mother and natural guardian of JANE DOE 2, Plaintiff,
TIPPECANOE SCHOOL CORPORATION, JOHN BEEKER, and FRED ROOP, Defendants.
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on a Motion to Compel Missing
Pages from Materials Provided at Defendants' 2015
Professional Development Meeting [DE 49], filed by Plaintiff
on December 1, 2016. Defendants Tippecanoe School Corporation
(TSC), John Beeker, and Fred Roop filed a response on
December 15, 2016. Plaintiff filed a reply on December 22,
motion, Plaintiff seeks a court order compelling Defendants
to produce pages 3-9 from a document titled “Strategies
for Investigation and Preventing Inappropriate Student-Staff
Relationships.” The other pages of the document have
been produced. Defendants oppose the motion and argue that
the pages at issue were properly withheld because they are
covered by both the attorney-client privilege and the work
product doctrine. Defendants also briefly mention a challenge
to the pages' relevance.
may “obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case.”
Fed.R.Civ.P. 26(b)(1). A party may seek an order compelling
discovery when an opposing party fails to respond to
discovery requests or has provided evasive or incomplete
responses. Fed.R.Civ.P. 37(a). The burden is on the objecting
party to show why a particular discovery request is improper.
Rule of Evidence 501 provides that claims of privilege are
governed by federal common law unless state law supplies the
rule of decision, in which case state law applies. In cases,
like the instant case, where both federal and state claims
are brought and the discovery at issue pertains to both
claims, federal common law applies. Mem'l Hosp. for
McHenry Cty. v. Shadur, 664 F.2d 1058, 1061 n.3 (7th
work product privilege applies to documents and tangible
things that are prepared in anticipation of litigation or for
trial by and for another party or its representatives.
Fed.R.Civ.P. 26(b)(3)(A). However, these materials may be
discovered if they are otherwise discoverable under Rule
26(b)(1) and “ the party shows that it has substantial
need for the materials to prepare its case and cannot,
without undue hardship, obtain their substantial equivalent
by other means.” Fed.R.Civ.P. 26(b)(3)(A). If mental
impressions, conclusions, opinions, or legal theories of a
party's attorney are contained in work product, these are
not to be disclosed even if the Court orders discovery of
work product. Fed.R.Civ.P. 26(b)(3)(B). The work product
privilege serves “dual purposes: (1) to protect an
attorney's thought processes and mental impressions
against disclosure; and (2) to limit the circumstances in
which attorneys may piggyback on the fact-finding
investigation of their more diligent counterparts.”
Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d
612, 621-22 (7th Cir. 2010).
qualify for protection under the work product doctrine,
“the primary motivating purpose behind the creation of
a document . . . must be to aid in possible future
litigation.” Binks Mfg. Co. v. Nat'l Presto
Indus., 708 F.2d 1109, 1119 (7th Cir. 1983) (quoting
Janicker v. George Washington Univ., 94 F.R.D. 648,
650 (D.D.C. 1982)); accord Charvat v. Valente, 82
F.Supp.3d 713, 719 (N.D. Ill. 2015) (quoting E.E.O.C. v.
Commonwealth Edison, 119 F.R.D. 394, 395 (N.D. Ill.
1988)). In determining whether the doctrine applies, courts
“look to whether in light of the factual context
‘the document can fairly be said to have been prepared
or obtained because of the prospect of
litigation.'” Logan v. Commercial Union Ins.
Co., 96 F.3d 971, 976-77 (7th Cir. 1996) (quoting
Binks Mfg. Co., 709 F.2d at 1119). The burden is on
the party asserting the doctrine's protection to show
that it applies. Christman v. Brauvin Realty Advisors,
Inc., 185 F.R.D. 251, 256 (N.D. Ill. 1999) (citing
Binks Mfg. Co., 709 F.2d at 1118).
pages at issue here are part of a larger document that was
created for the purpose of training TSC employees. The
document's title and deposition testimony by TSC
employees indicate that the training was meant to enable the
employees to investigate and prevent inappropriate
relationships between TSC's students and staff. Though
the document may not have been created if the instant
litigation had not been initiated, the primary motivating
purpose behind the creation of the document was to train
staff to identify or avoid future incidents, not for use in
defending the instant lawsuit or any future theoretical
lawsuit. Cf. Stalling v. Union Pac. R.R. Co., 01 C
1056, 2003 WL 22071502, at *1 (E.D. Ill. Sept. 4, 2003)
(holding that a risk management training manual that
discusses the contingency of litigation is not work product).
Defendants have not offered any indication of how they plan
to use the document in this or any other litigation that they
may have reason to anticipate. The work product doctrine and
the protections it provides, contained in Federal Rule of
Civil Procedure 26(b)(3), do not apply to these pages.
attorney-client privilege protects communications made in
confidence by a client . . . to an attorney . . . for the
purpose of obtaining legal advice.” Sandra
T.E., 600 F.3d at 618. “Although the
attorney-client privilege generally attaches only to
statements made by the client, statements made by the lawyer
to the client will be protected in circumstances where those
communications rest on confidential information obtained from
the client.” Rehling v. City of Chicago, 207
F.3d 1009, 1019 (7th Cir. 2000). The privilege is
“‘one of the oldest recognized privileges for
confidential communications' known to the common
law.” United States v. BDO Seidman, 337 F.3d
802, 810 (7th Cir. 2003) (quoting Swidler & Berlin v.
United States, 524 U.S. 399, 403 (1998)).
“However, because ‘the privilege has the effect
of withholding relevant information, ' courts construe
the privilege to apply only where necessary to achieve its
purpose.” Id. (quoting Fisher v. United
States, 425 U.S. 391, 403 (1976); citing In re Grand
Jury Proceeding (Cherney), 898 F.2d 565, 567 (7th Cir.
1990)). The party seeking to invoke the privilege has the
burden of establishing all of its elements. Id.
(citing In re Grand Jury Proceedings (Thullen), 220
F.3d 568, 571 (7th Cir. 2000); United States v.
Evans, 113 F.3d 1457, 1461 (7th Cir.
1997)).“[M]ere conclusory statements will not suffice
to meet that burden.” Allendale Mut. Ins. Co. v.
Bull Data Sys., Inc., 152 F.R.D. 132, 139 (N.D. Ill.
attorney-client privilege can be waived. Lorenz v. Valley
Forge Ins. Co., 815 F.2d 1095, 1098 (7th Cir. 1987).
Express waiver of attorney-client privilege occurs when
“information that would otherwise be privileged is not
kept confidential.” Patrick v. City of
Chicago, 154 F.Supp.3d 705, 711 (N.D. Ill. 2015) (citing
United States v. Buljubasic, 808 F.2d 1260, 1268
(7th Cir. 1987)).
protection of the attorney-client privilege for the pages at
issue, Defendants must establish that the communication was
made in confidence. See BDO Seidman, 337, F.3d at
811. Defendants have not identified any deposition testimony
indicating that the withheld pages are confidential.
Defendants argue that deposition testimony shows that
attendance at the meeting was limited to the attorney
presenting the material, TSC's administrators, and
possibly TSC teachers. The testimony, however, merely states
that it was a “teacher's meeting, ” (Burton
Dep. 36:9, ECF No. 49-2), “administrative meeting in
August where all of the administrators are there, ”
(Roop Dep. 12:18-19, ECF No. 49-3), or a mandatory
“administrate professional development, ” (DeLong
Dep. 64:9, 65:11-12, ECF No. 49-4). The testimony is in
conflict about who the ...