Smith-Brown v. Ulta Beauty, Inc.

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KIMBERLY LAURA SMITH- )

BROWN, et al., individually and on )

behalf of all others similarly situated, )

)

Plaintiffs, ) No. 18 C 610

)

v. ) Magistrate Judge M. David Weisman

)

ULTA BEAUTY, INC. and ULTA )

SALON, COSMETICS & )

FRAGRANCE, INC., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs ask the Court to compel defendants to produce twenty-seven documents and a

response to interrogatory 13 concerning defendants’ internal investigation of the allegations in the

complaint. Defendants contend that the information plaintiff seeks is privileged. For the reasons

set forth below, the Court grants in part and denies in part plaintiff’s motion to compel [177].

Discussion

Documents

Defendants contend that the documents at issue—nos. 53, 142, 143, 156, 157, 218, 235,

238, 254, 295, 319, 353, 355, 374, 390, 406, 412, 481, 511, 532, 539, 581, 607, 701, 702, 703, and

703(b) on their privilege log—are subject to the attorney-client and/or work product privileges.

Plaintiffs argue that: (1) the log is not detailed enough to assess the privilege claims; (2) even if it

is sufficiently detailed, defendants have not shown that the requested documents are subject to

either privilege; and (3) defendants have waived any privilege that might otherwise apply.

Vagueness

Plaintiffs argue that the document descriptions are too vague because they contain

“boilerplate buzzwords” such as “in anticipation of litigation” or “reflects legal advice.” (Pls.’ Br.,

ECF 177 at 5.) If the descriptions were limited to those words, that would be problematic. See

Nucap Indus. Inc. v. Robert Bosch LLC, No. 15 CV 2207, 2017 WL 3624084, at *1 (N.D. Ill. Aug.

23, 2017) (documents described only as “[c]ommunication reflecting legal advice regarding

anticipated litigation with Bosch” found insufficient). But here, in addition to the “buzzwords,”

the log contains a description of the documents. (See, e.g., Pls.’ Br., Ex. A, Privilege Log, ECF

177-1, Doc. 142 (described as “Communication reflecting work done as part of investigation

performed at the request and direction of company counsel, in anticipation of litigation, and for

the purpose of assisting with the provision of legal advice regarding social media allegations, such

as compiling internal company communications to and from stores sent at the direction of company

counsel, and gathering social media, media, customer, and/or former employee activity regarding

social media allegations, which provided information regarding the company’s investigation and

company counsel’s legal advice regarding company’s response to social media allegations.”).)

Thus, defendants’ use of “buzzwords” does not make the descriptions too generic.

Plaintiffs’ second argument is that defendants’ inclusion of “such as” in the descriptions

renders them vague. The Court agrees. By using qualifiers like “such as” and “and/or” in the

privilege log descriptions, defendants state what the subject of the documents may be, not what

the subject is. Defendants are ordered to amend their log to remedy this problem within seven

days of the date of this Memorandum Opinion and Order.

Work Product

Defendants contend that all twenty-seven of the documents are protected work product

because they were prepared in anticipation of litigation. See Fed. R. Civ. P. 26(b)(3)(A) (“[A]

party may not discover documents and tangible things that are prepared in anticipation of litigation

or for trial by or for another party or its representative” unless “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.”);

(Defs.’ Resp., ECF 191 at 11-17; id., Ex. 1, Caro Decl., ECF 191-1 ¶¶ 8-10). According to the

Seventh Circuit, a dual purpose document, one prepared in anticipation of litigation and for another

purpose as well, is work product only if “‘the primary motivating purpose behind [its] creation” is

“to aid in possible future litigation.’” Binks Mfg. Co. v. Nat’l Presto Indus., Inc., 709 F.2d 1109,

1119 (7th Cir. 1983) (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650

(D.D.C.1982)). “Materials created in the ordinary course of business which may have the

incidental effect of being helpful in litigation are not privileged under the work product doctrine.”

Lynk Labs, Inc. v. Juno Lighting LLC, No. 15 C 4833, 2016 WL 6135711, at *2 (Oct. 21, 2016)

(quotation omitted); Long v. Anderson Univ., 204 F.R.D. 129, 136 (S.D. Ind. 2001) (“[D]ocuments

created as a result of the discovery opponent’s ordinary course of business that would have been

created irrespective of litigation are not under the protection of the work product doctrine.”)

(quotation omitted).

Defendants contend that “the predominant purpose [for creating the contested documents]

was because of anticipated litigation.” (Defs.’ Resp. at 7) (emphasis omitted). In support of that

contention, defendants submit a declaration from their General Counsel, Jodi Caro. Ms. Caro

states that she “decided Legal Services need to lead the investigation into the social media

allegations in order to: gather information for Legal Services’ use and benefit in providing

informed legal advice to the company, ensure that the investigation proceeded in a way that was

coordinated with the company’s litigation strategy, and assess the company’s position in

anticipated litigation.” (Defs.’ Resp., Ex. 1, Caro Decl., ECF 191-1 ¶ 8.) She also says that “[a]

Legal Services-led investigation is not the company’s typical response to complaints or issues

raised by customers or former employees. Such an investigation only occurs when Legal Services

concludes that there is a potential legal issue that poses risk to the company, including the threat

of, or likelihood of, litigation, and requires legal advice.” (Id. ¶ 10) (emphasis in original). After

reviewing the contested documents in conjunction with Ms. Caro’s declaration, the Court finds

that the documents are work product.

Even if that is true, plaintiffs argue that the exception to the work product doctrine applies

because they are seeking “the underlying facts learned by Ulta in that investigation” and “have no

other means to obtain this information other than through Ulta’s own employees and the

investigation materials.” (Pls.’ Br., ECF 177 at 18.) But work product does not shield facts, see,

Lynk Labs., 2016 WL 6137511, at *1 (“[T]the work product doctrine does not protect bare facts.”),

so plaintiffs can obtain through depositions the facts Ulta uncovered in its investigation. Because

plaintiffs can obtain the information they seek without production of defendants’ work product,

the exception to the doctrine does not apply.

Attorney Client Privilege

Defendants claim that nineteen of the twenty-seven documents (53, 142, 143, 157, 218,

235, 238, 254, 295, 319, 353, 374, 390, 532, 539, 581, 607, 701, and 703(b)) are also protected by

the attorney client privilege. About this privilege, the Illinois Supreme Court has said: “[W]here

legal advice of any kind is sought from a professional legal advisor in his capacity as such, the

communications relating to that purpose, made in confidence by the client, are protected from

disclosure by himself or the legal adviser, except the protection be waived.” Fischel & Kahn, Ltd.

v. van Straaten Gallery, Inc., 727 N.E.2d 240, 243 (2000); see Fed. R. Evid. 501 (“[I]n a civil case,

state law governs privilege regarding a claim or defense for which state law supplies the rule of

decision.”).

Plaintiffs argue that the privilege does not apply because defendants “undertook the review

primarily for marketing and public relations, not for the purpose of providing legal advice.” (Pls.’

Br., ECF 177 at 7); see Nucap, 2017 WL 3624084, at *2 (“[C]onfidential communications with a

lawyer about business or other non-legal matters are not privileged.”); Allendale Mut. Ins. Co. v.

Bull Data Sys., Inc., 152 F.R.D. 132, 137 (N.D. Ill. 1993) (“[T]he privilege will not apply where

the legal advice is incidental to business advice.”). If, however, the documents contain “legal

advice relating to business matters,” the privilege applies. Marusiak v. Adjustable Clamp Co., No.

01 C 6181, 2003 WL 21321311, at *2 (N.D. Ill. June 5, 2003).

Plaintiffs say that, as with work product, Seventh Circuit law requires defendants to show

that the primary purpose of the contested documents was to render or solicit legal advice for the

attorney client privilege to apply. (Pls.’ Reply, ECF 196 at 1-3.) However, they do not cite, and

the Court could not find, a Seventh Circuit case with that holding.

Absent binding precedent, the Court turns to cases from other circuits for guidance. The

Second, Fifth, Sixth, and D.C. Circuits all use the predominant purpose test, see Alomari v. Ohio

Dep’t of Pub. Safety, 626 F. App’x 558, 570 (6th Cir. 2015); In re Kellogg Brown & Root, 756

F.3d 754, 759-60 (D.C. Cir. 2014); In re Cnty of Erie, 473 F.3d 413, 420 (2d Cir. 2007); United

States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997), which the D.C. Circuit has described as

follows:

[T]he primary purpose test, sensibly and properly applied, cannot and does

not draw a rigid distinction between a legal purpose on the one hand and a business

purpose on the other. After all, trying to find the one primary purpose for a

communication motivated by two sometimes overlapping purposes (one legal and

one business, for example) can be an inherently impossible task. It is often not

useful or even feasible to try to determine whether the purpose was A or B when

the purpose was A and B. It is thus not correct for a court to presume that a

communication can have only one primary purpose. It is likewise not correct for a

court to try to find the one primary purpose in cases where a given communication

plainly has multiple purposes. Rather, it is clearer, more precise, and more

predictable to articulate the test as follows: Was obtaining or providing legal advice

a primary purpose of the communication, meaning one of the significant purposes

of the communication? As the Reporter’s Note to the Restatement says, “In general,

American decisions agree that the privilege applies if one of the significant

purposes of a client in communicating with a lawyer is that of obtaining legal

assistance.” 1 Restatement § 72, Reporter’s Note, at 554. We agree with and adopt

that formulation—“one of the significant purposes”—as an accurate and

appropriate description of the primary purpose test. Sensibly and properly applied,

the test boils down to whether obtaining or providing legal advice was one of the

significant purposes of the attorney-client communication.

Kellogg, 756 F.3d at 759-60; see FTC v. Boehringer Ingelheim Pharm., Inc., 892 F.3d 1264, 1267-

68 (D.C. Cir. 2018) (same).

The Court finds this analysis persuasive. Thus, defendants must show that “obtaining or

providing legal advice was one of the significant purposes of the [contested documents]” to invoke

the attorney client privilege for them. With this principle in mind, and having reviewed the

documents in conjunction with Ms. Caro’s declaration, the Court concludes that documents 53,

142, 143, 157, 254, 295, 319, 353, 374, 390, the first page of 532, 539, the first page of 607, and

703(b) are subject to the attorney client privilege for the following reasons:

Document 53: This document is an email “sent from leadership in Store Operations to their

Regional Vice Presidents, District Managers, and General Managers.” (Defs.’ Resp., Ex. 1, Caro

Decl., ECF 191-1 ¶ 16a.) Ms. Caro says she “communicated directly with [the author] regarding

the contents of . . . [the] email . . . , and provided revisions to a draft” (id.), which suggests the

email reflects legal advice. Thus, it is subject to the attorney client privilege.

Documents 142 & 143: Document 142 is an email enclosing document 143, a compilation of

information that was created at Ms. Caro’s direction by Senior Vice President, Ms. Frankenrider,

and Senior Manager, Ms. Yamanaka. (Id. ¶ 17.) Because these documents were created to obtain

legal advice, they are subject to the attorney-client privilege.

Document 157: This is an email from Ms. Caples, Guest Services Advocate, to HR “in which

Ms. Caples selects and escalates specific social media allegations from a former employee and

requests information from Ms. Byrne and Ms. Sandifer, who I had charged with conveying my

legal advice.” (Id. ¶ 19a.) Because this document seeks legal advice it is subject to the attorney

client privilege.

Document 254: Ms. Caro describes this document as “emails from Ms. Yamanaka to certain

Regional Vice Presidents and District Managers . . . providing them with legal advice and

instruction, given to Ms. Yamanaka by Legal Services, on communicating with store teams and

gathering compliance information.” (Id. ¶ 18a.) Because the document contains legal advice, it is

privileged.

Documents 319 & 353: Document 319 is an email from Karen May, Director of Public Relations,

to employees in Store Operations and HR, and Document 353 is an email from Ms. May to

employees in HR, directing them to investigate and gather information in response to a media

inquiry. (Id. ¶¶ 21-22a.) Ms. Caro says these emails reflect her instructions to Ms. May. (Id. ¶

22.) Thus, they are privileged.

Documents 374 & 390: These documents are emails Senior Director McCabe sent to Regional

Vice Presidents and certain District Managers. (Id. ¶ 24.) Ms. Caro says she communicated with

McCabe about the contents of the emails, made revisions to them, and ultimately approved them.

(Id.) Though she does not explicitly say that these documents contain legal advice, that is a

reasonable inference that can be drawn from the contents of the emails and her declaration.

Documents 295, 532, & 607: Ms. Caro says she gave Guest Services legal advice on handling

customer complaints and directed Guest Services to pass the advice along to employees in other

business groups. Document 295 is a January 18, 2018 email from a District Manager to Guest

Services asking how to handle a customer complaint. (Id. ¶ 26a.) Document 532 are emails dated

January 30, and 31, 2018, “among a Senior Vice President, a Regional Vice President, Guest

Services, and Ms. May regarding the handling of a customer complaint.” (Id. ¶ 26b.) Document

607 is a February 16, 2018 email from a Regional Vice President to Guest Services regarding the

handling of a customer complaint. (Id. ¶ 26c.) Because the emails, i.e., document 295 and the

first pages of documents 532 and 607, reflect legal advice, they are privileged. The attachments

to the first pages of 532 and 607, which is correspondence between customers and defendants’

Guest Services personnel, are not privileged.

Document 539: This document is a January 31, 2018 email from Jeremy Hojnicki, Senior

Compliance Manager, to employees in Store Operations and Loss Prevention that “reflects a legal

recommendation that originated from Mr. Lentz, Senior Counsel in Legal Services, about the

company’s damage bin labels.” (Id. ¶ 30.) This document is privileged.

Document 703(b): This document “reflect[s] information compiled in connection with [Ms.

Caro’s] requests and for company counsel’s review in assessing the company’s position in the

litigation.” (Id. ¶ 31b.) Because this document was created to obtain legal advice, it is privileged.

Waiver

Plaintiffs argue that defendants have waived any privilege that might otherwise apply

because they voluntarily disclosed “various aspects surrounding their internal review to the public

on their website, as well as their internal policies and procedures and the steps they were taking,”

which are “among the very issues being raised in the log.” (Pls.’ Br., ECF 177 at 19.) Plaintiffs

do not, however, identify the documents on the log that they contend defendants voluntarily

disclosed. Absent that information, the Court cannot conclude that waiver occurred.

Alternatively, plaintiffs say that defendants waived any privilege by putting the privileged

communications at issue in the suit. (Id.); see Monco v. Zoltek Corp., No. 17 C 6882, 2018 WL

4917817, at *3 (N.D. Ill. Oct. 10, 2018) (“The Illinois Supreme Court has recognized that both the

attorney-client privilege and the work-product privilege may be waived as to a communication put

‘at issue’ by a party who is a holder of the privilege in . . . .”). Again, however, plaintiffs do not

explain how defendants put any privileged document at issue. See Monco, 2018 WL 4917817, at

*4 (“So, the question becomes what issues are the defendants raising that require resort to

disclosure of the emails at issue here? Are the defendants using these communications or

communications like them as a “sword and a shield” such that allowing them to maintain the

privilege over the emails at issue would be unfair?”). Without that information, the Court cannot

conclude that any waiver occurred.

Interrogatory 13

This interrogatory asks defendants to:

Identify each employee of Defendants who participated in any way in the “internal

review” referred to on Ulta’s Customer Website (https://www.ulta.com/policy-

againstreselling-used-makeup/) regarding Ulta’s “re-selling of used, damaged or

expired products,” and the dates of any such participation, including but not limited

to each employee who performed any investigation or interview, and each current

or former employee interviewed, in connection with such “internal review.”

(Pls.’ Br., Ex. D, ECF 177-4 at 9.) Ulta refused to answer this interrogatory, citing a variety of

objections, including relevance, burden, and that the requested information is protected by the

attorney client or work product privileges. (Id., Ex. E, ECF 177-5 at 14.) After the parties

conferred, “Plaintiffs informed Ulta that they intended to move to compel a response only with

respect to that portion of the Interrogatory which seeks the identity of who was interviewed and

when,” but “Ulta refused to produce this information and continued to stand on its objections.”

(Pls.’ Br., ECF 177 at 21.)

The relevance and burden objections are unfounded. The information sought would

identify people with knowledge of the allegations in this case, and defendants do not say why

producing this information would be unduly burdensome. Moreover, the attorney client privilege

does not apply because plaintiffs are seeking facts, not communications. See Upjohn Co. v. United

States, 449 U.S. 383, 395 (1981) (“The privilege only protects disclosure of communications; it

does not protect disclosure of the underlying facts by those who communicated with the

attorney.”).

That leaves work product. Defendants say plaintiffs’ request for a list of interviewees does

not seek facts but “seeks to uncover how Ulta Salon conducted its privileged investigation and

prepared for this and other litigation.” (Defs.’ Br., ECF 191 at 19) (emphasis in original).

Defendants cite Tracy v. NVR, Inc., 250 F.R.D. 130 (W.D.N.Y 2008), which in turn cites cases

from other jurisdictions, and Board of Education of Evanston Township High School District No.

22 v. Admiral Heating & Ventilation, Inc., 104 F.R.D. 23 (N.D. Ill. 1984), in support of their

argument. Though acknowledging that there are cases that go both ways, the Tracy court said:

“The better reasoned decisions, in my estimation, are those that draw a distinction between

discovery requests that seek the identification of persons with knowledge about the claims or

defenses (or other relevant issues)—requests that are plainly permissible—and those that seek the

identification of persons who have been contacted or interviewed by counsel concerning the case.”

Id. at 132. Similarly, the Admiral court said:

[The] legitimate concern [of an interrogatory asking for identification of anyone

defendant interviewed concerning the issues in the suit] is with the identification of

persons who have knowledge “concerning meetings, discussions or

communications among officers or employees of any competitors with regard to

piping construction bids, pricing, customers or territories.” To go beyond that—to

tell plaintiffs whom defendants have interviewed, where and when such interviews

took place and whether or not a record was made—is to give plaintiffs no more

knowledge of substantive relevant facts, but rather to afford them the potential for

significant insights into the defense lawyers’ preparation of their case (and thus

their mental processes).

104 F.R.D. at 32 (emphasis in original).

For their part, plaintiffs cite EEOC v. Jewel Food Stores, Inc., 231 F.R.D. 343 (N.D. Ill.

2005) in which the court overruled defendant’s work product objection to an interrogatory asking

for identification of “each person from whom Defendant has obtained a statement, affidavit or the

like, written or otherwise, concerning any act, circumstance or event related to any claims or

defenses in this case and for each such statement provide the substance of the statement and

identify the custodian thereof.” Id. at 345-47. The court said, “the fact that Jewel (or its counsel)

has talked to certain persons who are potential witnesses, without more, reveals little or nothing

about which witnesses Jewel considers important.” Id. at 347. In the Jewel court’s view, “a

discovery request that asks who has been interviewed and what they said [does not] run[] afoul of

the work product protection, at least where the request does not ask who conducted the interview.”

Id. Because the EEOC’s interrogatories did not “ask whether it was Jewel’s lawyers or instead

someone else at Jewel who . . . took statements from [persons with knowledge] . . . concerning the

claims or defenses in the case,” it did not invade work product. Id.

Here, unlike in Jewel, the investigation was done by defendants’ lawyers. Thus,

interrogatory 13 is asking defendants to identify the people their lawyers selected to interview, i.e.,

to reveal their lawyers’ mental processes. That is an impermissible invasion of work product.

Even if the interrogatory calls for work product, plaintiffs say they need the information

“to identify witnesses with knowledge about the underlying facts of the investigation,” and have

no other way to obtain it. (Pls.’ Br., ECF 177 at 24.) But plaintiffs can get that information simply

by asking defendants to identify witnesses with knowledge about the underlying facts of the

investigation. Because plaintiffs can obtain the information they say they need without

defendants’ work product, their motion to compel an answer to interrogatory 13 is denied

Conclusion

For the reasons set forth above, the Court grants in part and denies in part plaintiff's motion

to compel [177]. Defendants are ordered to amend their privilege log to remove the qualifiers

“such as” and “and/or” from the document descriptions, so each description states what the subject

of the document is, not what the subject may be, within seven days of the date of this Memorandum

Opinion and Order.

SO ORDERED. ENTERED: June 27, 2019

We haere! became

M. David Weisman

United States Magistrate Judge

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