Rusk

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROCK ISLAND DIVISION

STEPHANIE RUSK,

Plaintiff,

v. Case No. 4:25-cv-04076-SLD-RLH

HENRY COUNTY, ILLINOIS,

Defendant.

ORDER & OPINION

Stephanie Rusk is a nurse who began working for the Henry County Health

Department in June 2021. She held that position for three and a half years, receiving

generally positive performance reviews throughout. But when she took leave under

the Family Medical Leave Act (FMLA), the County told her that it was restructuring

its health department and fired her. Rusk suspected the County’s explanation a

pretext, so she filed this FMLA suit three months later.

Discovery is ongoing. The County has invoked the attorney-client privilege to

withhold an email chain among its employees generated days after Rusk’s

termination. It has also withheld an audio recording of the County Health Board’s

closed session, citing state law. Rusk has filed a motion to compel both. The

documents are privileged, so Rusk’s motion to compel will be denied.

BACKGROUND

Rusk’s motion seeks two categories of documents. The first concerns email

communications among Steven Martell, the County’s Behavioral Health Manager;

Naomi Stahl, its HR director; and Duane Stevens, its Public Health Administrator.

(See Doc. 21-1 at 1–3.) The emails were all exchanged on the same date—January 13,

2025—three days after Rusk was told that her position had been eliminated. (Doc. 21

at 9.) It turns out that before Rusk’s termination, Stahl and Stevens had met with

the County’s attorney to discuss the legal implications of that decision. According to

the County, the emails it withheld relate to information “requested by the County’s

attorney” during the meeting. (Doc. 22 at 4.)

The second category is a category of one: the audio recording of a closed session

of the County Health Board on November 5, 2025—seven months after the onset of

this litigation. Among the topics discussed, according to the County’s privilege log,

was this case. (Doc. 21-1 at 3.) And during that discussion, the County says, the Board

discussed information provided by the County’s lawyer on an earlier conference call.

(Doc. 21-1 at 3.)

LEGAL STANDARD

This case presents a federal question, so federal privilege law applies. See Fed.

R. Evid. 501. The attorney-client privilege protects communications made in

confidence by a client to an attorney for the purpose of securing legal advice. Sandra

T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). As that definition

suggests, the privilege generally protects only communications authored or received

by an attorney. See Gerba v. Nat’l Hellenic Museum, 338 F. Supp. 3d 851, 858 (N.D.

Ill. 2018). This makes sense: Its purpose is to encourage the “candor necessary to

obtain legal advice,” In re Feldberg, 862 F.2d 622, 627 (7th Cir. 1988), and such advice

is generally communicated by attorneys to their clients. But when it comes to

corporations and other legal entities, the limitation makes less sense. After all,

corporations can only act (and think) through their agents. Consumer Fin. Protection

Bureau v. TransUnion, 641 F. Supp. 3d 474, 483 (N.D. Ill. 2022). The privilege thus

extends to communications among non-attorney employees when they reflect the

attorney’s “legal thinking and forward-looking strategy.” In re Testosterone

Replacement Therapy Prods. Liab. Litig. (TRT), 301 F. Supp. 3d 917, 923 (N.D. Ill.

2018). Extending the privilege in this way affords “corporations the space to

collectively discuss sensitive information” without risking waiver. Roth v. Aon Corp.,

254 F.R.D. 538, 542 (N.D. Ill. 2009).

DISCUSSION

Rusk’s motion to compel seeks two categories of documents: an email chain

among non-attorney employees of the County and an audio recording of the County’s

closed session in early November 2025. Both are privileged.

I. The January 13 Email Thread Is Privileged

The principles above all but resolve category one. Rusk seeks an email thread

exchanged among two County employees discussing information “requested by the

County’s attorney.” (Doc. 22 at 4.) Disclosure of that thread would thus reveal the

attorney’s “legal thinking,” TRT, 301 F. Supp. 3d at 923, and “relat[e] to legal advice

regarding” the County’s termination of Rusk while she was on FMLA leave, In re

Sulfuric Acid Antitrust Litig., 235 F.R.D. 407, 433 (N.D. Ill. 2006).

Two cases are instructive. In TRT, the court sustained the attorney-client

privilege over “e-mails exchanged only between non-attorney . . . employees” because

the e-mails “reflect[ed] [the lawyer’s] thinking and forward-looking strategy for the

present litigation.” 301 F. Supp. 3d at 923. Similarly, the court in Gerba found

privileged an email authored by the defendant’s HR director “forward/summarizing

information conveyed to attorney for purpose of obtaining legal advice.” 338 F. Supp.

3d at 858. As in those cases, no lawyer was directly involved in the email thread that

Rusk seeks. Yet, like those cases, the emails here relate to the provision of legal advice

because they discussed information “requested by the County’s attorney” in an earlier

meeting. The emails are privileged.

Rusk disagrees, arguing that the email thread was not authored or received by

an attorney. (Doc. 21 at 18.) But the privilege is not so narrow. As stated, an attorney

need not be directly involved in the communication. Rusk also argues that the emails

do not include the “rendering or soliciting of legal advice.” (Doc. 21 at 18.) True, the

emails may not literally reflect legal advice—an attorney was not involved in

generating them. But they “relate to” such advice because they concerned potential

litigation and were solicited by the County’s attorney. See Sulfuric Acid, 235 F.R.D.

at 433–34. The emails were therefore a necessary step in the County’s ability to react

to—and later solicit—advice from a lawyer. Candor in those discussions is precisely

what the privilege is designed to facilitate. See Feldberg, 862 F.2d at 627.

Rusk’s motion also identifies an important limitation: The attorney-client

privilege protects communications, not facts. (Doc. 21 at 18.) So any facts relayed in

the email exchange—for instance, a timeline of events leading to Rusk’s

termination—would not be privileged. But the fact that a communication relays facts

does not strip it of protection; most communications reveal facts of some kind. As

Rusk correctly observes, the factual information contained in those emails is not

privileged. But she must obtain it by other means, such as interrogatories, deposition

testimony, or otherwise.1

II. The Audio Recording of the County’s Meeting

Category two concerns an audio recording of a closed session of the County

Health Board held seven months after Rusk filed suit. According to the County, the

“purpose” of the meeting was to “discuss[] this litigation.” (Doc. 22 at 13.) And during

the meeting, County officials discussed information relayed to them by the County’s

attorney “earlier that same day.” (Doc. 22 at 13.) The County withheld the recording

on three grounds: the attorney-client privilege, the deliberative process privilege, and

the Illinois Open Meetings Act.

To the extent that the recording concerns legal advice communicated to County

officials by their attorney, it is privileged for reasons already given: It relates to the

provision of legal advice, and preventing its disclosure would encourage candor

among members of the same organization who share a common legal interest. Rusk

does not dispute that communications between Martell (the County’s health

manager) and its attorney would be privileged. The only question, then, is whether

that privilege was waived when Martell shared those communications with the

County board during the closed session. The answer is no. The “common interest

doctrine” allows otherwise privileged communications to be “shared between parties

having a ‘common legal interest’ without a resultant waiver.” Miller UK Ltd. v.

1 Because the Court finds the emails protected by the attorney-client privilege, it need not address the

parties’ attorney work product arguments.

Caterpillar, Inc., 17 F. Supp. 3d 711, 731 (N.D. Ill. 2014). Here, all members of the

County board—who were presumably acting in their official capacity as the County’s

agents—certainly share a common interest in avoiding liability on Rusk’s FMLA

claims. So Martell’s disclosure to County officials of advice he received from an

attorney does not waive the privilege that would otherwise apply to that advice. See

United States v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007).

Rusk counters that “[n]o attorney was present at the meeting.” (Doc. 21 at 21.)

But this argument suffers from the same flaw identified above: It assumes that the

attorney-client privilege applies only to communications in which an attorney is

directly involved. Not so. Rusk also argues that the County’s privilege log states only

that Martell relayed “information”—not legal advice. But this argument slices the

bread too thin. On the County’s telling, the entire purpose of the meeting was to

discuss this litigation. That discussion would, of course, entail case strategy and the

attorney’s legal input about where the County stood. It is not only a fair inference but

an unavoidable conclusion that Martell relayed legal advice. And for the reasons

given, the privilege was not waived because a lawyer did not attend the meeting.2

2 Accordingly, the Court need not address the Illinois Open Meetings Act or the deliberative process

privilege.

CONCLUSION

IT IS THEREFORE ORDERED that Rusk’s Motion to Compel, (Doc. 21), is

DENIED.

So ordered.

Entered this 6th day of April 2026.

s/ Ronald L. Hanna

Ronald L. Hanna

United States Magistrate Judge