Shaffer v. AMERICAN MEDICAL ASS'N

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2117

W ILLIAM S HAFFER,

Plaintiff-Appellant,

v.

A MERICAN M EDICAL A SSOCIATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 CV 01656—Amy J. St. Eve, Judge.

A RGUED N OVEMBER 30, 2010—D ECIDED O CTOBER 18, 2011

Before K ANNE, W ILLIAMS, and T INDER, Circuit Judges.

W ILLIAMS, Circuit Judge. The American Medical Associa-

tion was not immune to the downturn in the economy.

Budget cuts mandated that some employees lose their

jobs, including at least one in the department where

William Shaffer worked. Fortunately for him, or so

it seemed, his supervisor was leaning toward letting

another person go. But soon after Shaffer requested

leave in light of upcoming surgery, that changed. His

2 No. 10-2117

supervisor decided that Shaffer would now be the em-

ployee let go in the department, and Shaffer contends

that decision was prompted by his request for leave

and was therefore improper under the Family and

Medical Leave Act. The AMA maintains that the leave

request had nothing to do with its decision, and a jury

might well agree. But we agree with Shaffer that a rea-

sonable jury could also find in his favor, and we reverse

the grant of summary judgment against him.

I. BACKGROUND

At this stage in the proceedings, we recount the narra-

tive that follows in the light most favorable to Shaffer

since he was not the party who moved for summary

judgment. The AMA first hired Shaffer in 1999. He re-

signed a year later, but the AMA rehired him in 2004

as a contract employee, and Michael Lynch hired him as

a full-time employee in 2005. By 2008, Shaffer had

become AMA’s Director of Leadership Communications.

His duties in that role included writing speeches and

editorials, supervising a staff of three speech writers,

and signing off on final speeches.

In August 2008 the economic downturn began to con-

cretely affect the AMA. The organization asked all its

departments to reduce their 2009 budgets by at least 3%

below the previous year’s budgets. At first, Lynch

reduced his budget by eliminating an annual conference.

The next month, in response to direction from the AMA

board, Marietta Parenti, AMA’s Chief Marketing Officer,

No. 10-2117 3

directed department heads to consider all options to

further reduce budgets, including the elimination of

positions. Parenti and Lynch ultimately decided they

needed to downsize by at least one position in Lynch’s

department.

On October 28, 2008, Parenti emailed Lynch to ask for

his recommendation regarding the elimination of a posi-

tion. Lynch responded that afternoon, beginning his

email by stating, “I know you want closure on this

issue tomorrow . . . .” It was already Lynch’s plan

to eliminate the position of Peter Friedman, the Com-

munications Campaign Manager, because his responsi-

bilities had changed drastically and the AMA had

stopped work on one of his core campaigns, and Lynch

had previously told Parenti that he had planned to cut

Friedman’s position. Parenti’s October 28 request sought

Lynch’s recommendation about whether to terminate

Shaffer as well, and Lynch wrote in his email that he did

not think cutting additional positions beyond Friedman’s

was in the AMA’s best interest and detailed why he

thought downsizing the department even more would

be a bad idea.

The AMA held its Interim Meeting in early Novem-

ber of 2008. On Thursday, November 20, 2008, Shaffer

notified Lynch that he would be having knee replace-

ment surgery on January 12, 2009, that he would be

taking four to six weeks of leave as a result, and that he

was setting up a claim for short-term disability benefits.

The Thanksgiving holiday fell the following week. On the

Sunday evening of the holiday weekend, November 30,

4 No. 10-2117

Lynch sent Parenti a long email. He explained that he

was now of the mind that the AMA should eliminate

Shaffer’s position and retain Friedman. Lynch also wrote,

“The team is already preparing for Bill’s short-term

leave in January, so his departure should not have any

immediate negative impact.” He also gave Parenti his

“[a]pologies for this 11th hour change of heart.”

Lynch and AMA Human Resources Representative

Harvey Daniels notified Shaffer on Thursday, December 4,

2008 that the AMA was letting him go. Shaffer’s last day

on the AMA payroll was January 4, 2009.

On February 2, 2009, after receiving a letter from

counsel representing Shaffer, AMA’s in-house counsel,

Michael Katsuyama, met with Daniels and informed him

of possible litigation. On February 3, Daniels typed up

handwritten notes he had taken concerning earlier dis-

cussions with Lynch about eliminating Shaffer’s posi-

tion. Daniels dated the typed notes November 25, 2008

and shredded his original notes. The typed document

states that the position was eliminated because Lynch

could accommodate having the speech writing staff

report directly to him, a layer of management would be

eliminated, and there had been decreased demand on the

speech writing staff. Lynch’s calendar did not reflect a

meeting with Daniels for November 25, though, and

Lynch testified in his deposition that he recalled that

he was still pondering which position to eliminate

over Thanksgiving weekend and had not made a deci-

sion as of November 25.

Also during the first few days of February, Daniels told

Lynch to prepare a memorandum for Lynch’s upcoming

No. 10-2117 5

meeting with in-house counsel Katsuyama and to

describe in it his rationale for selecting Shaffer as the

employee to let go. Lynch typed the memorandum on

February 3 or 4, 2009, but he dated it November 21, 2008

and addressed it to Daniels. Lynch gave the memoran-

dum to Katsuyama when they met.

Shaffer filed suit in federal court, and the district

court granted summary judgment in the AMA’s favor.

In May 2009, because of the economic environment,

the AMA ended its employment of approximately

100 additional employees, including Friedman.

II. ANALYSIS

Shaffer appeals the district court’s grant of summary

judgment against him on his claim that his termination

violated the Family and Medical Leave Act. The FMLA

guarantees employees twelve workweeks of leave for

serious health conditions, including the knee surgery

Shaffer had. See 29 U.S.C. § 2612(a)(1). The FMLA

forbids an employer from interfering with an em-

ployee’s right to take leave and return to his job and

also from retaliating against an employee who claims

benefits under the statute. 29 U.S.C. § 2615. We review

the district court’s grant of summary judgment in favor

of the AMA de novo, viewing all facts and drawing

all reasonable inferences in the light most favorable to

Shaffer, the nonmoving party. See Goelzer v. Sheboygan

Cnty., Wis., 604 F.3d 987, 992 (7th Cir. 2010).

6 No. 10-2117

A. Waiver

It is not surprising that one of the pieces of evidence

on which Shaffer relies is Lynch’s November 30 email

notifying Parenti that he had decided Shaffer was the

employee to be let go. The AMA, however, maintains

that we cannot consider this email. In support, it points

us to the district court’s statement that it was not con-

sidering any facts that were not contained in the par-

ties’ Rule 56.1 statements. That is certainly within a dis-

trict court’s prerogative to do. See Cichon v. Exelon Genera-

tion Co., L.L.C., 401 F.3d 803, 809 (7th Cir. 2005) (“Local

Rule 56.1 requires specifically that a litigant seeking to

oppose a motion for summary judgment file a response

that contains a separate ‘statement . . . of any additional

facts that require the denial of summary judgment.’ ”);

Metro Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir.

2002) (“[W]e have emphasized the importance of local

rules and have consistently and repeatedly upheld a

district court’s discretion to require strict compliance

with its local rules governing summary judgment.”)

(quotation omitted). But that general statement by the

district court in no way supports the AMA’s argument that

we cannot consider the November 30 email in this case.

The district court’s opinion makes clear that the Novem-

ber 30 email was not something it had refused to con-

sider. In fact, it spent an entire five-sentence paragraph in

the “Relevant Facts” section of its opinion detailing that

very email. The paragraph begins by stating, “On Novem-

ber 30, 2008, the day before Parenti’s deadline for making

a final decision, Lynch sent an email to Parenti that de-

No. 10-2117 7

tailed his ‘11th hour change of heart’ that ‘perhaps we

should eliminate Bill Shaffer’s position and keep Pete’s for

now . . . .”, and it then spelled out much of the rest of the

email.

And although the AMA argues that Shaffer failed to

include the email in his Rule 56.1 statement, Shaffer

discussed the email in paragraph 12 of his Statement of

Additional Facts and also stated in that paragraph that a

true and accurate copy of the email was attached as

Appendix 6, which it was. Shaffer also specifically dis-

cussed the email on pages 4 and 5 of his Memorandum

in Opposition to the American Medical Association’s

Motion for Summary Judgment, and pointed to the key

passage he relied on, stating, “The email included the

justification that ‘The team is already preparing for

Bill’s short-term leave in January, so his departure

should not have any immediate negative impact.’ ”

Shaffer further argued on page 10 of his Memorandum

that the email did not mention the explanation asserted

by the AMA as the reason for the termination decision

during litigation, namely that Lynch could easily absorb

Shaffer’s responsibilities. Shaffer appropriately raised

the November 30 email before the district court, the

district court discussed it in its opinion, and there is no

reason Shaffer cannot point to it on appeal now.

B. Viable Family and Medical Leave Act Claim

The AMA also argues that Shaffer did not establish one

of the prerequisites for FMLA protection, that he worked

more than 1,250 hours for the AMA in the previous year.

8 No. 10-2117

See 29 U.S.C. § 2611(2)(A)(ii). It is true that the parties’

Rule 56.1 statements of facts are silent as to this require-

ment. Yet the AMA admitted in its answer to Shaffer’s

amended complaint that he had worked there for over

1,250 hours the previous year, so there was no need

for Shaffer to raise the matter again.

With that hurdle cleared, we turn to the merits of

Shaffer’s claim. In doing so, we keep in mind that at the

summary judgment stage, “the judge’s function is not

himself to weigh the evidence and determine the truth

of the matter but to determine whether there is a

genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986); see also Kodish v. Oakbrook Terrace

Fire Prot. Dist., 604 F.3d 490, 507 (7th Cir. 2010) (reversing

grant of summary judgment where plaintiff’s claims

not so implausible that a reasonable jury could not find

in his favor).

There are two types of FMLA claims, those for inter-

ference and those for retaliation. The FMLA mandates

that an employer may not “interfere with, restrain, or

deny the exercise of or the attempt to exercise” any

FMLA rights. 29 U.S.C. § 2615(a)(1). In addition, the

FMLA contains an anti-retaliation provision, making it

“unlawful for any employer to discharge or in any

other manner discriminate against any individual for

opposing any practice made unlawful by this

subchapter.” 29 U.S.C. § 2615(a)(2). An employer does

not, however, violate the FMLA for failing to return him

to his former position after he returns from leave if

the employee would have been let go even if he had not

No. 10-2117 9

taken the leave and the termination decision was

unrelated to the leave request. Goelzer, 604 F.3d at 993.

“The difference between a retaliation and interference

theory is that the first ‘requires proof of discriminatory

or retaliatory intent while [an interference theory]

requires only proof that the employer denied the

employee his or her entitlements under the Act.’ ” Id.

(citing Kauffman v. Federal Express Corp., 426 F.3d 880,

884 (7th Cir. 2005)). The interference and retaliation

claims here are closely linked, see Smith v. HOPE School,

560 F.3d 694, 701 (7th Cir. 2009), as Shaffer stated in his

memorandum in opposition to the AMA’s motion for

summary judgment; we do not find the interference

argument waived. Shaffer was eligible for FMLA pro-

tection, covered by the FMLA, and provided sufficient

notice of his intent to take leave. See Goelzer, 604 F.3d

at 993 (summarizing threshold FMLA interference claim

requirements). If Shaffer can demonstrate that the AMA

fired him to prevent him from exercising his right to

reinstatement in his position, he can succeed on an in-

terference theory. See id. To succeed on a retaliation

theory, under the direct method applicable here, a

plaintiff survives summary judgment by “ ‘creating

a triable issue of whether the adverse employ-

ment action of which she complains had a discrimina-

tory motivation.’ ” Lewis v. School Dist. #70, 523 F.3d

730, 741 (7th Cir. 2008) (quoting Rudin v. Lincoln Land

Cmty. Coll., 420 F.3d 712, 721 (7th Cir. 2005)).

As in Goelzer, then, the issue for us to determine in this

case is whether a reasonable jury could conclude that

10 No. 10-2117

Shaffer’s exercise of his right to take FMLA leave was

a motivating factor in the decision to eliminate his posi-

tion. See Goelzer, 604 F.3d at 995. The AMA maintains

that the decision to terminate Shaffer’s employment

had nothing to do with his FMLA request. Shaffer thinks

otherwise, and contends that a reasonable jury could

conclude the AMA terminated his employment because

he requested leave protected by the FMLA. We agree

with Shaffer that the evidence in the record, when inter-

preted in the light most favorably to him as we must at

this stage, supports that a reasonable jury could find

that the AMA chose him as the person in his department

to let go because he exercised his right to take FMLA leave.

As of October 28, 2008, Lynch had decided to eliminate

Friedman’s position and not Shaffer’s. Lynch even sent

an email to his supervisor detailing why he did not

think the elimination of any additional positions

beyond Friedman’s was in the AMA’s best interest.

Lynch also said in his deposition that downsizing Fried-

man’s position would be the “obvious choice” to anyone

looking at the situation from the outside since the

AMA was no longer proceeding with one of Friedman’s

core campaigns.

Three weeks later, however, Lynch changed his mind.

The only events of note in the interim were Shaffer’s

request for leave on November 20 and the early

November AMA Interim Meeting in Orlando. Shaffer

sent Lynch an email on Thursday, November 20 in-

forming him that he would be having knee replacement

surgery in January and was setting up a claim for short-

No. 10-2117 11

term disability benefits. When Lynch emailed Parenti on

November 30 that he had now decided to eliminate

Shaffer’s position and keep Friedman’s, he included the

comment that “[t]he team is already preparing for Bill

[Shaffer]’s short-term leave in January, so his departure

should not have any immediate negative impact.” A jury

could find that this statement, the change in the decision

of whom to terminate, and the timing of the new deci-

sion soon after Shaffer’s leave request support that

his request for leave led to his termination.

A jury might also give credence to Shaffer’s argument

that Daniels backdated a memorandum to make it ap-

pear that the decision to let him go was not influenced by

the leave request. See Brunker v. Schwan’s Home Serv.,

Inc., 583 F.3d 1004, 1008-09 (7th Cir. 2009) (backdating

of termination notice to a date before employee left

for treatment to avoid impression that condition in-

fluenced termination decision helped create issue for

trial); see also Lewis, 523 F.3d at 743. On February 3, 2009,

Daniels typed up a copy of handwritten notes he said

came from an earlier discussion with Lynch regarding

Shaffer’s termination. Daniels dated the typed notes

November 25, 2008, which he said was the same date as

his earlier handwritten notes. But Lynch had no recol-

lection of a meeting that day with Daniels, nor did

his calendar reflect one.

The AMA emphasizes that November 25 came after

Shaffer requested leave. At first glance, a memorandum

dated after Shaffer requested leave would not seem to

support a theory that evidence had been manufactured

12 No. 10-2117

to suggest that the leave request did not influence the

termination decision. However, viewed in the light

most favorable to Shaffer as we must, the record

supports a conclusion that when Daniels typed up

the notes in February, he was acting under the impres-

sion that the leave request had not come until Novem-

ber 26. Daniels stated in his deposition that he had

several conversations with Lynch, including one on

November 25 and another the next day. Daniels said

that Lynch raised Shaffer’s request for medical leave for

the first time during the November 26 conversation.

Daniels also said that Lynch told him during that conver-

sation that he had just learned of the leave request.

The troubling fact that Daniels shredded his hand-

written notes after learning of potential litigation also

could weigh in favor of Shaffer. A jury might conclude

from all this that Daniels had been trying to create a

paper trail.

A jury could also look to the different explanations

given at different times for Shaffer’s termination. See

Simple v. Walgreen Co., 511 F.3d 668, 671 (7th Cir. 2007)

(“The inconsistency is suggestive of pretext and thus

is evidence of discrimination . . . .”). The AMA points to

the early November Interim Meeting and maintains it

helped lead Lynch to change his mind about whom

to terminate, as it says Lynch had to fill in for Shaffer

to help a junior speech writer when Shaffer was unavail-

able, and also that Lynch was concerned about the

absence without explanation. Yet Lynch told Shaffer that

the termination decision had nothing to do with his

performance and did not mention any concern about

No. 10-2117 13

the Interim Meeting, and Daniels testified in his deposi-

tion that he was not told of any problems with Shaffer

at the meeting or that Shaffer’s performance played

any role in the decision to terminate his employment.

Daniels’s typed-up notes state that the position was

eliminated because Lynch could accommodate having

the speech writing staff report to him, among other

things. In the November 30, 2008 email to Parenti, Lynch

justified his change in decision to terminate Shaffer

instead of Friedman by stating that Friedman had

evolved into a flexible utility man who could fill in the

gaps. This email said nothing about the Interim Meeting

or Lynch’s ability to absorb his responsibilities. And one

of the staff speech writers stated in his deposition

that Lynch told him Shaffer’s position had been

eliminated for another reason, that he had the highest

salary and largest cost.

Of course, a jury may well agree with the AMA that

Shaffer’s leave request had no impact on the termination

decision. One employee had to be let go in Shaffer’s

department, and he was certainly one of the candidates.

As the AMA argues, a jury might also view the mention

in Lynch’s email to Parenti that the team was already

preparing for Shaffer’s upcoming leave not as a reason

for terminating him, but as an explanation of its effect.

A jury might agree that Shaffer was absent during an

important time at the Interim Meeting and that the

absence there helped lead the AMA to select his posi-

tion for elimination. And Daniels testified that he

dropped by Lynch’s office on November 25, which is a

reasonable explanation for why there was no appoint-

14 No. 10-2117

ment in Lynch’s calendar for that day. He may have

then typed up his handwritten notes after he learned of

litigation and dated the document the date of his notes,

without any intent to have that date help support the

termination decision. The competing reasonable in-

ferences that can be drawn from the record are not for

us to resolve at the summary judgment stage, however.

We are obligated to view the record in the light most

favorable to Shaffer and to refrain from weighing the

evidence or deciding which inferences to draw from

the facts. See Kodish, 604 F.3d at 507. Because a rea-

sonable jury could find in Shaffer’s favor, we reverse

the grant of summary judgment against him.

C. Attorney-Client Privilege Protects Memorandum

We now address one more piece of evidence Shaffer

would like to use on remand, a memorandum the

district court ruled was protected by the attorney-

client privilege. The contents of the document did not

play into our analysis of whether summary judgment

was proper, but so there is no question on remand, we

address the privilege question now. The scope of the

attorney-client privilege is a question of law we review

de novo, while we review the district court’s findings

of fact and application of law to fact for clear error.

Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007).

The document in question is a one-page typewrit-

ten memorandum from Lynch that on its face is dated

November 21, 2008, and entitled “Elimination of staff

position.” The memorandum is addressed to Harvey

No. 10-2117 15

Daniels, but Lynch testified in his deposition that he

typed up the memorandum in early February of 2009

for the sole intention of meeting with in-house attorney

Katsuyama and that he gave it only to Katsuyama.

The document was inadvertently turned over during

discovery, and the district court agreed with the AMA’s

subsequent assertion that the attorney-client privilege

protected it.

The attorney-client privilege “ ‘is the oldest of the

privileges for confidential communications known to the

common law.’ ” United States v. Jicarilla Apache Nation, 131

S. Ct. 2313, 2320 (2011) (quoting Upjohn Co. v. United States,

449 U.S. 383, 389 (1981)). Its purpose is “to encourage

full and frank communication between attorneys and

their clients and thereby promote broader public

interests in the observance of law and administration of

justice.” Upjohn, 449 U.S. at 389. For the attorney-

client privilege to attach to the memorandum, we have

summarized the requirements to be that the communica-

tion contained therein must have been made in con-

fidence, in the connection with the provision of legal

services, to an attorney, and in the context of an attorney-

client relationship. United States v. BDO Seidman, LLP,

492 F.3d 806, 815 (7th Cir. 2007). The privilege is con-

strued narrowly, and the burden is on the party seeking to

invoke the privilege—here, the AMA—to establish that

it applies. United States v. White, 950 F.2d 426, 430 (7th

Cir. 1991).

The communication was made in confidence and to an

attorney. Lynch created the memorandum for the sole

16 No. 10-2117

purpose of meeting with in-house counsel Katsuyama.

Lynch created the document alone, did not discuss it

with anyone else, and gave the memorandum only to

Katsuyama in a meeting where only the two were pres-

ent. Lynch therefore produced the memorandum in

confidence to an attorney.

The next question is whether the communication was

made in connection with the provision of legal services.

Shaffer argues that Lynch prepared the memorandum

only as a matter of standard procedure unrelated to

threatened litigation and that it was not in connection

with the provision of legal services. However, the

evidence in the record shows otherwise. Shaffer’s

counsel sent a letter to the AMA on January 21,

2009 stating that he intended to file suit for wrongful

termination of employment. Katsuyama received it on

February 2. Katsuyama then spoke with Daniels, and, as

a result, Daniels informed Lynch that Lynch would be

meeting with Katsuyama to discuss Shaffer’s termina-

tion and that he should prepare the document for that

meeting. Shaffer points out that Daniels denied telling

Lynch that Shaffer was taking legal action. But although

Daniels denied making that specific statement, Daniels

also testified he was aware that Lynch assumed a

lawsuit was pending or threatened. Lynch, the more

important person in this inquiry, believed he was pro-

viding the memorandum in connection with the provi-

sion of legal services. When asked why he drafted the

memorandum, he testified that Daniels told him it ap-

peared there would be some litigation regarding the

elimination of Shaffer’s position, and that in preparation

No. 10-2117 17

for the meeting with in-house counsel, he should put in

writing his recollection of his decision-making. We

agree with the district court that Lynch wrote the memo-

randum and gave it to Katsuyama in connection with

the provision of legal services.

Shaffer also contends that the memorandum was not

produced in the context of an attorney-client relation-

ship. Although Human Resources Representative Daniels

asked Lynch to create the memorandum and it was

addressed to Daniels, Lynch explained that the context of

Daniels’s request was that “there was going to be some

legal action regarding the elimination of Shaffer’s posi-

tion” and that Lynch needed to meet with the AMA’s

attorney. Lynch also understood that he created the

document for the sole purpose of meeting with in-

house counsel Katsuyama about the possible lawsuit.

The memorandum was therefore prepared in the context

of the attorney-client relationship.

Finally, Shaffer argues that even if the attorney-

client privilege would normally protect the document, the

crime-fraud exception should apply here because,

he asserts, it was prepared after the fact to justify the

termination. “The crime-fraud exception places com-

munications made in furtherance of a crime or fraud

outside the attorney-client privilege.” BDO Seidman, 492

F.3d at 818. This exception comes from the recognition

that when legal advice relates “not to prior wrongdoing,

but to future wrongdoing,” the privilege goes beyond what

is necessary to achieve its purpose. United States v. Zolin,

491 U.S. 554, 562-63 (1989) (citation omitted). The excep-

18 No. 10-2117

tion’s purpose is to ensure that the confidentiality

afforded to communications between attorney and

client “does not extend to communications ‘made for the

purpose of getting advice for the commission of a fraud’

or crime.” Id. at 563 (quoting O’Rourke v. Darbishire,

[1920] A.C. 581, 604 (P.C.)).

We have said that the party arguing that the crime-fraud

exception should apply must first “present prima facie

evidence that gives color to the charge by showing some

foundation in fact.” United States v. Boender, 649 F.3d

650, 655 (7th Cir. 2011) (quoting BDO Seidman, 492 F.3d

at 818). The district court can then require the defendant

to come forward with an explanation for the evidence

offered against the privilege. Id. Finally, the district court

exercises its discretion in accepting or rejecting the prof-

fered explanation. Id. In this case, after receiving briefs

from both sides, the district court conducted an

in camera review of the document, and, based on the

circumstances in this case, ruled that the crime-fraud

exception did not apply. We review that decision

for an abuse of discretion. See BDO Seidman, 492 F.3d

at 818.

It is certainly odd that not just Daniels, but also Lynch

typed up memoranda after learning of the potential

litigation and dated them months before the dates on

which they were typed. That said, there is no sugges-

tion from the record that Lynch’s memorandum was

in furtherance of a crime or fraud. Lynch specifically

told in-house counsel that he had prepared the memoran-

dum in preparation for their meeting, and no attempt

No. 10-2117 19

was made to hide that fact during the meeting or to

anyone else thereafter. The AMA has not attempted to

use Lynch’s memorandum to support its termination

decision, and there is no evidence that in-house

counsel assisted Lynch in the commission of a fraud or

gave any advice to him regarding the commission of a

fraud. Cf. United States v. Al-Shahin, 474 F.3d 941, 946-47

(7th Cir. 2007) (applying crime-fraud exception to com-

munications that furthered scheme to collect money from

an insurance company for a staged accident). There is no

suggestion from the record that Lynch intended to

commit a fraud either. Lynch was up front with

Katsuyama, the memorandum’s intended and only audi-

ence, that despite its date he had prepared the memo-

randum only recently and not in November. Lynch

freely acknowledged in his deposition that he drafted

the memorandum in February 2009. He also explained

that he placed the November 21 date on the memo-

randum because he had been told to write down his

rationale for taking the action he did at the time he did

it. Notably, Lynch clearly knew on November 21, the

date he placed on the memorandum at issue, that

Shaffer had already requested leave since Shaffer had

sent him an email requesting it the previous day. The

date Lynch placed on his memorandum, unlike the

date on the one Daniels typed, therefore does not

support a theory that the memorandum was an attempt

to rationalize the decision before learning of Shaffer’s

FMLA leave request. Under these circumstances, the

district court did not abuse its discretion when it con-

cluded that the crime-fraud exception did not apply.

20 No. 10-2117

We therefore uphold the district court’s determination

that the attorney-client privilege protects the memoran-

dum.

III. CONCLUSION

The judgment of the district court is R EVERSED, and

this case is R EMANDED for further proceedings con-

sistent with this opinion.

10-18-11