United States District Court, N.D. Indiana, Hammond Division
TERRI G. MARTIN, Plaintiff,
ANTHONY COPELAND, et al., Defendant.
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion to
Compel Defendants to Produce Documents Requested Pursuant to
Rule 34 and Subpoena Duces Tecum [DE 46], filed on January
11, 2018. Defendants filed a response on January 25, 2018,
and Plaintiff filed a reply on February 1, 2018.
brought this lawsuit seeking damages for claims arising from
her termination from her position as a public health officer
for the City of East Chicago. During discovery, Plaintiff
issued a subpoena duces tecum to Defendant Sandra Favella,
Human Resources Director for the City of East Chicago,
requesting that she be deposed and that she bring with her
various records, including Plaintiff's personnel file.
Defendant Favella attended the deposition and brought a copy
of Plaintiff's personnel file, together with a privilege
log identifying 70 pages of the file that were omitted under
an assertion of attorney/client privilege. Plaintiff objects
to the omission of those documents and moves to compel
Defendant to produce Plaintiff's entire file, including
the pages identified as attorney communications. She argues
that (a) she has an absolute right to access her entire
personnel file, including attorney communications, under
Indiana statute governing access to public records; and (b)
that any attorney-client communication ceased to be
privileged the moment they were placed in her personnel file.
to Indiana public records is governed by the Indiana Code,
Section 5-14-3-1 et seq. Section 3 describes the
right to inspect and copy records of any public agency,
including any political subdivision of the state. I.C.
§§ 5-14-3-2(q)(2)(A), 5-14-3-3. Section 4(a) lists
records that “may not be disclosed . . . unless access
to the records is specifically required by a state or federal
statute or is ordered by a court under the rules of
discovery.” I.C. §§ 5-14-3-3; 5-14-3-4(a).
Section 4(b) lists records that “may be excepted from
section 3 of this chapter [that is, records that can be
withheld from inspection and copying] at the discretion of a
pubic agency.” Among the types of records that may be
withheld at agency discretion are, pursuant to Section
4(b)(2), “[t]he work product of an attorney”
employed by the state or appointed by a public agency to
represent the state, its agencies, and their employees; and,
pursuant to Section 4(b)(8) the “[p]ersonnel files of
public employees. . . However, all personnel file information
shall be made available to the affected employee or the
employee's representative.” I.C. §
argues that the clause allowing public employees to access
their own files in subsection (8) takes precedence over the
general prohibition of disclosure of attorney work product
articulated in subsection (2). But the structure of the
statute itself argues against such a reading: the clause
requiring disclosure to an “affected employee”
appears just after the general protection of “personnel
files” in subsection 8. I.C. § 5-14-3-4(b)(8).
Nothing in the structure of the statute indicates that the
requirement to disclose personnel file information to an
“affected employee” is meant to override the
protection of attorney work product provided for in
subsection 2 and elsewhere in Indiana and Federal law.
Therefore, Defendant City of East Chicago may at its
discretion withhold qualifying attorney work product, as
defined in Section 2 of the statute, within an employee's
also argues that Defendants waived any possible claim to
attorney-client privilege when they placed the attorney
communications into Plaintiff's personnel file.
Defendants disagree, noting that no waiver of the privilege
occurred because the omitted documents were never disclosed
to Plaintiff. It is uncontested that Plaintiff never received
a copy of the omitted communications; thus, no waiver of the
attorney-client privilege occurred.
objects to the contents of the privilege log, contending that
Defendants' bare assertion of privilege is not enough to
support their withholding of discovery. Federal Rule of Civil
Procedure 26(b)(5)(A)(ii) specifies that a privilege log must
“describe the nature of the documents, communications,
or tangible things not produced or disclosed-and do so in a
manner that, without revealing information itself privileged
or protected, will enable other parties to assess the
claim.” Fed.R.Civ.P. 26(b)(5)(A)(ii). “The mere
assertion of a privilege is not enough; instead, a party that
seeks to invoke the attorney-client privilege has the burden
of establishing all of its essential elements.”
U.S. v. BDO Seidman, 337 F.3d 802, 811 (7th Cir.
2003); see also Hobley v. Burge, 433 F.3d 946, 947
(7th Cir. 2006). “An assertion of privilege therefore
must be made on a document-by-document basis.” In
re Grand Jury Proceedings, 220 F.3d 568, 572 (7th Cir.
2000). “A party who invokes any privilege [ ] must . .
. provide to the opposing party a privilege log containing
the following information for each document not disclosed:
(1) the name and job title or capacity of the
author(s)/originator(s); (2) the names of all person(s) who
received the document or a copy of it and their affiliation
(if any) with the producing party; (3) a general description
of the document by type (e.g., letter, memorandum, report);
(4) the date of the document; and (5) a general description
of the subject matter of the document.” In re
Bridgestone/Firestone, Inc., ATX. ATX II, 129 F.Supp.2d
1207, 1218-19 (S.D. Ind. 2001). A timely and adequate
privilege log is required by the federal rules, and the
failure to serve an adequate and timely privilege log may
result in a waiver of any protection from discovery. See
Babych v. Psychiatric Solutions, Inc., 271 F.R.D. 603,
608 (N.D. Ill. 2010).
the log that Defendant Favela brought to her deposition
contained a list of pages, set forth under the headings Bates
Numbers, To, From, and Reason for Redaction. For each group
of pages, the “reason for redaction” given is
“reserves Attorney/client privilege.” No dates,
description of document of type, or general description of
the subject matter of the documents is provided.
Additionally, as noted by Plaintiff, at least 19 pages
referenced in the log consist of materials sent by
Plaintiff's own attorney; those pages are clearly not
privileged. The Court is therefore unable to discern which of
the pages identified in the log qualify as attorney work
product or are subject to the attorney-client privilege.
the Court DENIES Plaintiff's Motion to
Compel Defendants to Produce Documents Requested Pursuant to
Rule 34 and Subpoena Duces Tecum [DE 46] to the extent that
it seeks production of the entire file but
ORDERS Defendants to
PRODUCE to Plaintiff an amended privilege
log in full compliance with Federal Rule of Civil Procedure
26(b)(5) and the elements set forth above, on or before
July 19, 2018.
Court ORDERS that the discovery deadline in
this case is extended ...