981 F.Supp. 1123
39 Fed.R.Serv.3d 1306
(Cite
as: 981 F.Supp. 1123)
United States District Court,
N.D. Illinois,
Eastern Division.
Raymond L. HUGLEY, Plaintiff,
v.
THE ART INSTITUTE OF CHICAGO, et al., Defendants.
No.
96 C 7452.
Oct. 29, 1997.
Motion granted in part and denied in part.
*1124 Ronald Barry Schwartz, Hedberg, Tobin, Flaherty & Whalen, P.C., Chicago, IL, for Plaintiff.
Bruce
R. Alper, Thomas
Michael Wilde,
Vedder, Price, Kaufman & Kammholz, Chicago, IL, for Defendants.
Allan R. Stasica, Asst. Atty. General, General Law Bureau, Chicago,
IL, for IDHR
(a Non-Party).
MEMORANDUM OPINION AND ORDER
ALESIA,
District Judge.
Before the court is The Illinois Department of Human Rights' ("IDHR")
Non-Party's Motion to Quash Plaintiff's Subpoena. For the reasons that
follow, the court grants in part and denies in part the IDHR's motion to
quash.
*1125
I.
BACKGROUND
Plaintiff Raymond L. Hugley ("Hugley") filed suit against defendants
The Art Institute of Chicago, Richard Hall, and Marion Ellis, alleging
race discrimination in violation of Title VII of the Civil Rights Act of
1964, race bias in violation of section 1981 of the Civil Rights Act of
1866 as amended by the Civil Rights Act of 1991, and defamation in violation
of Illinois common law. This court has subject matter jurisdiction over
these claims pursuant to 28
U.S.C. § 1331
and §
1367.
Before filing suit in federal court, Hugley filed a charge of discrimination
with the IDHR. The IDHR investigated the charge.
During the discovery process related to Hugley's suit filed in this
court, Hugley had the IDHR served with a subpoena, demanding production
of the investigative file and all other documents relating to Hugley's
charge. In response
to Hugley's subpoena, the IDHR produced some of the requested documents
and withheld others. The IDHR then filed with the court a Non- Party's
Motion to Quash Plaintiff's Subpoena. In its motion, the IDHR asserts that
the withheld documents are protected from discovery by the privilege afforded
records of the IDHR under section 926.210 of the Illinois Administrative
Code ("section 926.210"), Ill.
Admin. Code tit. 2, § 926.210
(West 1997), the attorney-client privilege, and the work-product doctrine.
In support of its motion to quash, the IDHR has submitted for an in
camera
review the sixteen withheld documents along with a privilege log which
identifies the documents and specifies the privileges asserted as to the
particular document. The IDHR, however, did not number each of the documents.
For the purposes of the court's order, the documents are numbered as follows:
Document number 1 is the one undated copy of the charge referenced in I.b.1
of the IDHR's privilege log. Document number 2 is the three pages of notes
referenced in I.b.2. Document number 3 is the two pages of notes referenced
in II.b. Documents number 4, 5, and 6 are the three pages of memoranda
referenced in III.b. Document number 7 is the one page of notes referenced
in IV.b. Document number 8 is the two-page investigator plan referenced
in V.b. Document number 9 is the one page document referenced in VI.b.
Document number 10 is the one page document referenced in VII.b. Documents
number 11, 12 and 13 are the checklists referenced in VIII.b. Document
number 14 is the Complainant Information Sheet referenced in IX.b.1. Document
number 15 is the one-page draft referenced in IX.b.2. Document number 16
is the eleven-page draft referenced in X.b.
II.
DISCUSSION
A. Section 926.210
The IDHR first argues that the withheld documents are protected from
discovery by the privilege afforded records of the IDHR under section 926.210
of the Illinois Administrative Code ("section
926.210"). Ill.
Admin. Code tit. 2, § 926.210
(West 1997). Section
926.210
provides, in pertinent part:
The contents of any files maintained by the Department pertaining to charges, including but not limited to all documents, statements, notes, memoranda, correspondence, exhibits and any reports or summaries prepared by or on the behalf of the Department, as well as the identities of any parties or witnesses in such matters, shall be confidential and not subject to public disclosure, except that: (a) the parties to any charge may inspect any such file upon making arrangements with the Department, at anytime subsequent to the Department's written notification of Substantial Evidence, or dismissal or administrative closure of the charge; or after filing a complaint, a petition for entry of a default order, or settlement agreement with the Human Rights Commission. However, the Department shall not allow parties to inspect certain materials which include, but are not limited to: (1) internal memoranda; (2) work papers, or notes or other materials reflecting the deliberative processes, mental impressions, or legal theories and advice of the Department....
FN1.
Hugley does not argue that section
926.210(a)
does not create an evidentiary "privilege" within the meaning of the laws
of evidence. Rather, Hugley simply argues that the court should not recognize
the privilege afforded under section
926.210
in this case. The court's opinion, therefore, limits itself to that issue.
First,
because evidentiary privileges operate to exclude relevant evidence and
thereby block the judicial fact-finding function, they are not favored
and, where recognized, must be narrowly construed. Second, in deciding
whether the privilege asserted should be recognized, it is important to
take into account the particular factual circumstances of the case in which
the issue arises. The court should "weigh the need for truth against the
importance of the relationship or policy sought to be furthered by the
privilege, and the likelihood that recognition of the privilege will in
fact protect that relationship in the factual setting of the case."
(1)
Where legal advice of any kind is sought (2) from a professional legal
adviser in his capacity as such, (3) the communications relating to that
purpose, (4) made in *1128
confidence (5) by the client, (6) are at his instance permanently protected
(7) from disclosure by himself or by the legal adviser, (8) except the
protection be waived.
FN2.
The IDHR cites Illinois
Supreme Court Rule 201(b)(2),
which provides Illinois' version of the work-product protection, in support
of its argument that the documents are protected by the work-product doctrine.
However, work-product issues in this federal question case are governed
by federal, not state, law. E.g., Dawson
v. New York Life Ins. Co.,
901 F.Supp. 1362, 1367 (N.D.Ill.1995).
The threshold determination of whether a document qualifies as work product
is whether the document was prepared in anticipation of litigation. Dawson,
901 F.Supp. at 1368.
In order for a document to have been "prepared in anticipation of litigation,"
the "primary motivating purpose behind the creation of the document or
investigative report must be to aid in possible litigation." Id.
(citing Binks
Mfg. Co. v. National Presto Indus.,
709 F.2d 1109, 1119 (7th Cir.1983)).
The party asserting the work-product protection "has the burden of offering
a specific explanation of why
the item is privileged from discovery." Vardon
Golf Co. v. BBMG Golf Ltd.,
156 F.R.D. 641, 646 (N.D.Ill.1994).
For
the foregoing reasons, the court grants in part and denies in part The
Illinois Department of Human Rights' Non-Party's Motion to Quash Plaintiff's
Subpoena. Specifically, the court orders that:
1.
Documents number 4, 5, 6, 8 and 9 and page 9 of document number 16 are
protected from discovery pursuant to Ill.
Admin. Code. tit. 2, § 926.210
(West 1997) and the motion to quash with respect to those items is granted.
2.
Documents number 1, 2, 3, 7, 10, 11, 12, 13, 14, and 15 and pages 1-8 and
10-11 of document number 16 are not protected by Ill.
Admin. Code. tit. 2, § 926.210,
the attorney-client privilege, or the work-product doctrine. Therefore,
the motion to quash as to those particular items is denied.
3.
The Illinois Department of Human Rights is ordered to produce documents
number 1, 2, 3, 7, 10, 11, 12, 13, 14, and 15 and pages 1-8 and 10-11 of
document number 16 to plaintiff Raymond L. Hugley.
4.
As agreed to by plaintiff, the documents produced pursuant to this order
are subject to the protective order which was entered on June 10, 1997.
§
926.210(a)(1)-(2)
There are two issues embedded in the IDHR's argument that the withheld
documents are protected by section
926.210.
The first issue is whether the court should recognize *1126
the privilege afforded under section
926.210.
[FN1]
The second issue is whether the privilege actually protects the documents
in question.
In determining whether the asserted privilege should be recognized, the
court must remember that a " 'strong policy of comity between state and
federal sovereignties impels federal courts to recognize state privileges
where this can be accomplished at no substantial cost to federal substantive
and procedural policy.' " Memorial
Hosp.,
664 F.2d at 1061
(citing United
States v. King,
73 F.R.D. 103, 105 (E.D.N.Y.1976)).
The Seventh Circuit has emphasized that the court must consider certain
principles when making the determination of whether an asserted privilege
should be recognized under Federal
Rule of Evidence 501.
These are:
Memorial
Hosp.,
664 F.2d at 1061-62
(citations omitted).
Applying the above principles to the facts of this case, the court
determines that the privilege afforded under section
926.210
should be recognized to the extent that it will not unduly compromise the
federal interest in full disclosure of relevant evidence. The need for
full disclosure of relevant evidence is always a substantial interest. Memorial
Hosp.,
664 F.2d at 1062.
However, there is a strong interest in affording the IDHR's staff the liberty
to communicate openly and freely about cases and their potential disposition. In
re Request for Review by Ricky Cooper,
1997 WL 575420, at * 1 (Ill. Human Rights Comm'n Aug. 1, 1997). In addition,
in order to encourage a full factual investigation of the case, the IDHR's
staff should be free to record their "deliberative processes, mental impressions,
or legal advice or theories" without fear that those notes will be freely
discoverable. In this case, the court can recognize the privilege while
still furthering the interest in full disclosure by strictly confining
the application of the privilege to those documents or portions thereof
that qualify either as "internal memoranda" or
material which reflects "the deliberative processes, mental impressions,
or legal theories and advice" of the IDHR. Thus, the principle of comity
impels this court to recognize this limited state-law privilege in this
case.
Hugley argues that the court should not recognize the privilege afforded
under section 926.210
because "the doctrine of comity does not apply here." (Plaintiff's Answer
Brief to Illinois Department of Human Rights' Motion to Quash Plaintiff's
Subpoena (hereinafter "Pl.'s Ans.") at 3.) Hugley argues that the doctrine
of comity does not *1127
apply because the Illinois Human Rights Commission recently refused to
apply section
926.210
in Cooper
v. Illinois Department of Human Rights,
1997 WL 575420, at *1.
Hugley's argument is unpersuasive. In Cooper,
the complainant wanted to review nonverbatim witness statements which were
written down by the IDHR investigator. Id.
at *5. The IDHR argued that the statements were privileged and, thus, protected
from discovery under section
926.210.
The Illinois Human Rights Commission found section
926.210
inapplicable because the handwritten, nonverbatim witness statements did
not constitute mental impressions which were protected by section
926.210(a)(2);
rather, the statements consisted only of the witnesses' testimony. Id.
The Commission stated that if the investigator had written down more than
what the witness has said, that portion may be redacted. The Commission
also stated that it recognized the importance of "having staff characterizations
protected by the privilege"
and providing the IDHR staff "liberty to communicate with each other about
cases and their potential disposition." Id.
Thus, Cooper
does not stand for the proposition that the Illinois Human Rights Commission
would never recognize the privilege afforded under section
926.210.
The Commission simply found the privilege inapplicable to the documents
at issue in that case.
Having determined that the court will recognize and strictly construe
the privilege afforded under section
926.210,
the court must now determine whether the withheld documents are protected
by section
926.210.
In the present case, the court finds that section
926.210
protects (1) documents number 4, 5, and 6 because these documents are memoranda
between the IDHR staff; (2) document number 8 because this document reveals
the investigative plan of the IDHR; (3) document number 9 because this
document reflects the legal advice of the IDHR; and (4) page 9 of document
number 16 because the information on that page reflects the deliberative
processes of the IDHR. Thus, the court grants the IDHR's motion to quash
as to documents number 4, 5, 6, 8 and 9 and page 9 of document number 16.
The court finds that section
926.210
does not protect documents 1, 2, 3, 14, and pages 1-8 and 10-11 of document
16 because the information contained therein is simply the investigator's
notes of what other individuals told the investigator. The information
in those documents does not reflect the
"deliberative processes, mental impressions, or legal theories and advice
of the Department" as contemplated by section
926.210(a)(2). See
Cooper,
1997 WL 575420, at *5. Further, these documents are not "internal memoranda"
as contemplated by section
926.210(a)(1).
The court also finds that section
926.210
does not protect documents number 7, 10, 11, 12, 13, and 15. These documents
are simply documents generated during the investigatory process which do
not contain the "deliberative processes, mental impressions, or legal theories
and advice of the Department" as contemplated by section
926.210(a)(2).
Further, these documents are not "internal memoranda" as contemplated by section
926.210(a)(1).
Thus, the court finds that section
926.210
protects documents number 4, 5, 6, 8 and 9 and page 9 of document number
16 and grants the motion to quash as to those items. Section
926.210
does not, however, protect documents number 1, 2, 3, 7, 10, 11, 12, 13,
14, 15 and pages 1-8 and 10-11 of document number 16. Thus, the court must
determine whether those documents are protected from discovery by either
the attorney-client privilege or the work-product doctrine.
B. Attorney-client
privilege
The IDHR asserts that documents number 1, 2, 3, 7, 10, 11, 12, 13, 14,
15, and 16 are protected by the attorney-client privilege. The court disagrees.
In this federal question case, the issue of whether these documents are
protected by the attorney-client privilege is governed by federal, not
state, law. Fed.R.Evid.
501.
The Seventh Circuit has adopted the elements of the attorney-client privilege
as stated by Dean Wigmore in his treatise Evidence
at Trials in Common Law:
United
States v. Evans,
113 F.3d 1457, 1461 (7th Cir.1997)
(citations omitted). The attorney-client privilege protects confidential
communications between an attorney and his client made for the purpose
of obtaining legal advice. United
States v. Lawless,
709 F.2d 485, 487 (7th Cir.1983).
However, because the privilege presents an impediment to the truth, courts
strictly confine the application of the privilege to its narrowest limits. E.g., Evans,
113 F.3d at 1461
(citations omitted). The party asserting the privilege has the burden of
proving each of the essential elements. Id.
Further, a party cannot simply make a blanket claim of privilege; rather,
the party must claim and establish the attorney-client privilege on a document-by-
document basis. E.g., In
re Air Crash Near Roselawn, Ind. on Oct. 31,1994,
No. 95 C 4593, 1997 WL 97096, at *2 (N.D.Ill. Feb.20, 1997).
In the present case, the IDHR has failed to meet its burden in proving
that the attorney-client privilege protects any of the documents at issue.
First, the IDHR has simply listed "attorney-client" as one of the privileges
asserted as to the withheld documents and has not attempted to establish
each of the requisite elements of the attorney-client privilege. Second,
the documents at issue were prepared by either an IDHR investigator or
staff member. There is no indication that either IDHR investigators or
members of the IDHR's staff are attorneys, See
Cooper,
1997 WL 575420, at *5 ("The Department investigator is not an attorney.")
Further, the only information contained in the documents at issue that
could qualify as a "communication" was supplied by either Hugley, The Art
Institute, or another witness, none of whom are the IDHR's clients. See
id.
Thus, there is no attorney-client relationship established. Accordingly,
the court finds that the IDHR has failed to establish that the attorney-client
privilege protects documents number 1, 2, 3, 7, 10, 11, 12, 13, 14, 15
and 16.
C. Work-product
doctrine
The IDHR next argues that the documents at issue are protected from discovery
by the work-product doctrine. The work-product doctrine is a federal doctrine
that derives from the landmark case of Hickman
v. Taylor,
329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947),
and that has been partially codified
into Federal
Rule of Civil Procedure 26(b)(3).A.O.
Smith Corp. v. Lewis, Overbeck & Furman,
No. 90 C 5160, 1991 WL 192200, at *1 (N.D.Ill. Sept.23, 1991).
[FN2]
The work-product doctrine provides protection to documents prepared by
or for an attorney "in anticipation of litigation or for trial." Fed.R.Civ.P.
26(b)(3).
In the present case, the IDHR has failed to establish that documents
number 1, 2, 3, 7, 10, 11, 12, 13, 14, 15 and 16 are protected pursuant
to the work- product doctrine. The IDHR did not attempt to establish that
the primary motivating purpose for creating these documents was to aid
in possible future litigation. This is probably because the IDHR could
not make such a showing. The documents at issue were created either by
an IDHR investigator or staff member. These *1129
individuals are neither attorneys nor agents of the IDHR attorneys; rather,
these individuals are neutral parties whose primary responsibility is to
collect the facts. Cooper,
1997 WL 575420, at *4. The investigator gathers all of the facts at the
investigation stage in order to make a determination of whether substantial
evidence exists to support the charge. Id.
Thus, the reality is that the IDHR investigator and staff members prepared
the documents at issue for the purposes of collecting the facts and determining
whether substantial evidence exists to support the charge. Id.
Thus, the IDHR has failed to meet its burden of establishing that the documents
at issue were prepared in anticipation of litigation. Accordingly, the
court finds that documents number 1, 2, 3, 7, 10, 11, 12, 13, 14, 15 and
16 are not protected from discovery under the work-product doctrine.
III.
CONCLUSION
981 F.Supp. 1123, 39 Fed.R.Serv.3d 1306
END OF DOCUMENT