Cage v. Harper

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PATRICK CAGE,

Case No. 17-CV-7621

Plaintiff,

v. Magistrate Judge Sunil R. Harjani

TIFFANY HARPER, et al.

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff, Patrick Cage, has sued the Board of Trustees of the Chicago State University over

his termination as General Counsel of the University. In the instant matter, Plaintiff has filed a

motion to compel Akerman LLP, a law firm, to comply with a subpoena for documents where

Akerman has asserted attorney-client privilege over the documents [175, 176]. Defendants have

filed a response brief objecting to the motion [186] and Akerman has adopted those arguments

[185]. The question in this dispute is whether the “at-issue” waiver of the attorney-client privilege

doctrine applies to compel production of the documents from Akerman. The Court finds that it

does not, and therefore denies Plaintiff’s motion to compel.

Discussion

Plaintiff seeks to compel the production of communications between legal counsel

(Akerman) and its client (the Board of Trustees and Chicago State University) on the basis that

Defendants have pled affirmative defenses of good faith and qualified immunity, and therefore

have waived the attorney-client privilege.

The attorney-client privilege is “one of the oldest recognized privileges for confidential

communications,” United States v. BDO Seidman, 337 F.3d 802, 810 (7th Cir. 2003), and exists

primarily to “‘encourage full and frank communication between attorneys and their clients.’”

United States v. Zolin, 491 U.S. 554, 562 (1989) (quoting Upjohn Co. v. United States, 449 U.S.

383, 389 (1981)). However, the attorney-client privilege can be waived, either explicitly or by

implication. Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1098 (7th Cir. 1987); see also United

States v. Nobles, 422 U.S. 225, 239 (1975); United States v. Brock, 724 F.3d 817, 821 (7th Cir.

2013). Express waiver occurs where “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). Implied

waiver, the relevant inquiry in this case, can occur when a client asserts claims or defenses that put

his or her attorney's advice “at issue” in the litigation. Beneficial Franchise Co., Inc. v. Bank One,

N.A., 205 F.R.D. 212, 216 (N.D. Ill. 2001).

The “at issue” waiver doctrine is limited and “should not be used to eviscerate the attorney-

client privilege.” Silverman v. Motorola, Inc., 07 CV 4507, 2010 WL 2697599 at *4 (N.D. Ill. July

27, 2010) (citing LG Electronics v. Whirlpool Corp., 2009 WL 3294802 (N.D. Ill. 2009)). Merely

asserting a claim or defense to which attorney-client communications are relevant, without more,

does not constitute a waiver of attorney-client privilege. The privileged party must affirmatively

put at issue the specific communication to which the privilege attaches before the privilege will be

deemed waived. United States v. Capital Tax Corp., 04 CV 4138, 2011 WL 1399258 (N.D. Ill.

2011); Beneficial Franchise Co., Inc. v. Bank One, N.A., 205 F.R.D. 212, 216 (N.D. Ill. 2001).

The Seventh Circuit has not addressed directly the federal common law standard for when

a party waives attorney-client privilege by putting privileged information “at issue” in a case.

However, in Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1175 n.1 (7th Cir. 1995), the

Seventh Circuit cited the standard adopted by the Third Circuit in Rhone-Poulenc. As a result,

district courts within this circuit have applied the Rhone-Poulenc standard. See, e.g., DR

Distributors, LLC v. 21 Century Smoking, Inc., 2015 WL 5123652 (N.D. Ill. 2015); Novak v. State

Parkway Condo. Ass'n, 2017 WL 1086767 (N.D. Ill. 2017)); Capital Tax Corp., 2011 WL

1399258; Silverman, 2010 WL 2697599; Bosch v. Ball-Kell, 2007 WL 601721 (C.D. Ill. 2007);

Schofield v. U.S. Steel Corp., 2005 WL 3159165 (N.D. Ind. 2005); Chamberlain Group v.

Interlogix, Inc., 2002 WL 467153 (N.D. Ill. 2002); Beneficial Franchise Co., 205 F.R.D. at 216.

Accordingly, at issue waiver occurs when a party “affirmatively put[s] at issue the specific

communication, document, or information to which the privilege attaches.” Dexia Credit Local v.

Rogan, 231 F.R.D. 268, 275 (N.D. Ill. 2004). Put another way, attorney-client privilege is

generally waived when a client asserts claims or defenses that put his attorney’s advice at issue in

the litigation. Garcia, 58 F.3d at 1175, n.1.

Here, Plaintiff has not established that Defendants have placed the attorney-client

communications at issue. Instead, Defendants have explicitly stated it is not relying upon the

advice of counsel in proving any of its affirmative defenses. Nor have Defendants relied upon the

advice of counsel or any communications with counsel at any deposition or in response to any

discovery request. See e.g. Capital Tax Corp., 2011 WL 1399258, at *2 (finding that at issue

waiver did not occur where a plaintiff intended to meet its burden of proof on a claim without

using privileged information). In turn, Plaintiff has not provided any specific instance in which a

Defendant has referenced or identified communications with counsel as being part of the assertion

of any affirmative defense. Moreover, Defendants can seek to establish through non-privileged

communications and actions these affirmative defenses; nothing about these defenses mandates

that advice of counsel be used to prove them.

Rather, two things are clear from Plaintiff’s motion and reply brief. First, it is Plaintiff

who is placing the communications at issue because he believes that there must be relevant

information with respect to his termination from Chicago State University, as counsel appears to

have been consulted during the process of termination, at the very least, with respect to the drafting

of a severance agreement, as indicated by Defendants’ privilege log. However, Defendants have

not stated that its good faith or qualified immunity defense is based in any way on communications

with counsel. Indeed, Defendants essentially disavow any reliance upon advice of counsel for

these defenses in its response brief. [185] Rather, it is Plaintiff who has injected the issue of advice

of counsel in the case, and then sought to obtain that information. That is not a basis for waiver –

the privilege holder must be the one to inject the issue. Motorola v. Hytera, No. 17 CV 1973, 2018

WL 1804350 at *6 (N.D. Ill. April 17, 2018).

Second, Plaintiff argues that fundamental fairness and access to the truth are considerations

that the Court must consider. While some courts have discussed these issues in deciding whether

an implied waiver occurred, the Court is aware of no case that has solely relied upon a fairness

analysis to find an implied waiver of privilege. Indeed, that holding would effectively eradicate

the attorney-client privilege. Relevant evidence is almost always found in attorney-client

communications – that is the point of the privilege. It allows the client the protection to discuss a

legal issue, often the subject of an eventual lawsuit, in confidence. The fact that the Board

consulted with lawyers in the course of terminating a senior level employee at the University is

not surprising or unusual. That alone does not waive the privilege on pure relevancy and fairness

grounds simply by the mere assertion that the Board generally acted in good faith and that its

officers are protected under the qualified immunity doctrine while acting under color of state law.

Finally, Plaintiff claims that the law in the Seventh Circuit is that the simple assertion of a

good faith defense or a qualified immunity defense is sufficient to waive the attorney-client

privilege. That is not the law in this Circuit. A mere assertion of an affirmative defense, alone,

does not waive the privilege. As discussed above, the attorney’s advice must be placed at issue in

the context of asserting the affirmative defense. See e.g. Beneficial, 205 F.R.D. at 216; see also

Johnson v. Rauland–Borg Corp., 961 F.Supp. 208, 211 (N.D.Ill.1997) (finding privilege waived,

in Title VII case, where employer “intends to argue that it is not liable because it acted reasonably

by employing the outside attorney to investigate the matter.”); Panter, 80 F.R.D. 718, 721 (N.D.

Ill. 1978) (finding that the at-issue waiver applied where defendants asserted as an essential

element of their defense reliance upon advice of counsel).

In support of its position, Plaintiff advances Lorenz v. Valley Forge Insurance Company,

815 F.2d 1095 (1987). However, in Lorenz, the Seventh Circuit found no at issue waiver of the

privilege because the defendant, the holder of the privilege, did not inject a new factual or legal

issue into the case. Even there, where defendant’s former attorney had testified, the Court

determined that the attorney’s testimony was simply a form of proof of a particular fact, but did

not inject a new legal issue into the case that warranted waiver. Plaintiff further urges this Court

to rely upon Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), which was cited by the Seventh

Circuit in Lorenz, but without any discussion of its analysis or holding. Some courts have

interpreted Hearn to be consistent with current Seventh Circuit law that the holder of the privilege

must advance a particular communication with counsel in support of a claim or defense to result

in an at-issue waiver. See Motorola, 2018 WL 1804350, at *5. This is likely because despite the

broad language in Hearn, the state officials who asserted the qualified immunity defense had

implicitly placed at issue the advice they received from the Attorney General’s office. Specifically,

Plaintiff presented evidence to the court that defendant had received prior notice from the Attorney

General that his conduct violated Plaintiff’s rights, which was probative in evaluating defendant’s

malice for his post-notice conduct, and could negate the qualified immunity defense raised by

Defendant. Hearn, 68 F.RD. at 582-583. Other courts have determined that Hearn sought to

impose a rule that any time a claim or affirmative defense was asserted, and where the relevant

information in support of the claim was contained in the privileged documents, the privilege was

waived -- those courts have rejected reliance on Hearn. See e.g. In re the County of Erie, 546 F.3d

222, 227 (2d Cir. 2008) (collecting cases); Rhone-Poulenc, 32 F.3d at 863; Trustees of the

Electrical Workers v. Trust Fund Advisors, Inc., 266 F.R.D. 1, 12-13 (D.D.C. 2010). Regardless

of the holding in Hearn, the Court finds that the state of the law in the Seventh Circuit is clear that

Defendants must place the privilege communications at issue by advancing those privileged

communications in support of its affirmative defenses for there to be an at issue waiver. See

Garcia, 58 F.3d at 1175, n.1. Defendants have not done so, and thus the Court finds that there has

been no waiver.!

Conclusion

Accordingly, Plaintiff's Motion to Compel Compliance with Subpoena Service on

Akerman, LLP [175, 176] is denied.

SO ORDERED. fk

Dated: December 19, 2019

Sunil R. Harjani

United States Magistrate Judge

The parties raise other arguments about the timeliness of bringing this dispute to the Court based on

prior representations to the district judge, and various alleged misrepresentations in the briefing. None of

these arguments merit any discussion by the Court.