Sandra T.E. v. South Berwyn School District 100

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3344

S ANDRA T.E., et al.,

Plaintiffs-Appellees,

v.

S OUTH B ERWYN S CHOOL D ISTRICT 100,

Defendant-Appellant,

and

S IDLEY A USTIN LLP,

Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05-CV-473—William J. Hibbler, Judge.

A RGUED F EBRUARY 24, 2009—D ECIDED F EBRUARY 25, 2009 Œ

O PINION M ARCH 30, 2010

Before R OVNER, W OOD , and SYKES, Circuit Judges.

Œ

With a notation that an opinion would follow.

2 No. 08-3344

S YKES, Circuit Judge. An elementary-school music

teacher in the South Berwyn School District 100 was

charged with sexually molesting numerous students

over a period of several years during his tenure in the

district. Some of the victims brought this civil lawsuit

against the District and a school principal who allegedly

knew about the abuse long before the charges were filed

but did not take appropriate responsive action. Reacting

to the criminal charges and the filing of the civil suit, the

School Board hired attorneys from Sidley Austin LLP to

conduct an internal investigation and provide legal

advice to the Board. As part of this investigation, Sidley

attorneys interviewed many current and some former

school-district employees and third-party witnesses. These

interviews were not recorded. Instead, the attorneys

took handwritten notes and later drafted memoranda

summarizing the interviews. Sidley delivered its findings

and legal advice to the School Board in an oral report and

a written executive summary, but has not represented

the defendants in this litigation.

During discovery the plaintiffs issued a subpoena for

the documents in Sidley’s possession relating to its

District 100 investigation. Relying on the attorney-client

privilege and the work-product doctrine, Sidley declined

to produce its notes and internal memoranda relating to

the employee and witness interviews and other legal

memoranda prepared in connection with the investiga-

tion. On the plaintiffs’ show-cause motion, the district

court concluded that Sidley had been hired to provide

investigative services, not legal services, and ordered

the firm to produce the documents. Sidley appealed.

No. 08-3344 3

Immediately following oral argument, we issued an

expedited order reversing the district court and holding

that the law firm’s documents were protected by the

attorney-client privilege and the work-product doctrine.

This opinion explains the rationale behind that sum-

mary order and also addresses an intervening develop-

ment regarding the scope of the collateral-order doctrine,

which supplied our jurisdiction to immediately review

the district court’s order.

I. Background

In January 2005 police arrested Robert Sperlik, an

elementary-school band teacher employed by District 100,

on charges that he had repeatedly sexually abused numer-

ous female students ages nine to twelve. Sperlik would tie

up or bind the girls with duct tape during private lessons

and then sexually molest them; the abuse began in 1998

and continued until Sperlik’s arrest in early 2005. Sperlik

eventually confessed to the crimes and was convicted and

sentenced to 20 years in prison. Some of Sperlik’s victims

told police they had reported the abuse to the school

principal after it occurred, but the principal failed to take

appropriate action against Sperlik. On January 26, 2005,

shortly after Sperlik’s arrest, some of the victims and

their families filed this civil lawsuit against District 100

and the school principal who was alleged to have been

deliberately indifferent to the ongoing sexual abuse; they

asserted claims under 42 U.S.C. § 1983, 20 U.S.C. § 1681

(Title IX of the Education Amendments of 1972), and

various state laws.

4 No. 08-3344

As news of Sperlik’s arrest became known, the families

of District 100 students were understandably outraged

at the extent and duration of the teacher’s crimes and the

possibility that the school administration knew about the

sexual abuse but had failed to respond. Reacting to the

criminal charges, the public outcry, and the filing of the

civil lawsuit, the School Board retained the law firm of

Sidley Austin LLP (then Sidley Austin Brown & Wood

LLP) to conduct an internal investigation.1 The School

Board wanted Sidley to review the criminal charges

filed against Sperlik, investigate the actions of school

administrators in response to the allegations of sexual

abuse, examine whether any district employees had failed

to comply with district policies or federal or state law,

and analyze the effectiveness of the District’s existing

compliance procedures. According to the February 4, 2005

engagement letter between Sidley and the School Board,

Sidley was to “investigate the response of the school

administration to allegations of sexual abuse of students”

and to “provide legal services in connection with” the

investigation. Scott Lassar, a partner at Sidley and a

former U.S. Attorney for the Northern District of Illinois,

spearheaded the investigation.

On the same day the engagement letter was issued, the

School Board president and superintendent of schools

1

At the time the School Board requested the internal investiga-

tion, only the School District, Sperlik, and the principal of the

elementary school that employed Sperlik were named as

defendants. The individual members of the School Board

were added as defendants in March 2006.

No. 08-3344 5

sent a joint letter to parents announcing the District’s

retention of Lassar to conduct the investigation. Ten days

later the superintendent sent another more detailed

letter to parents explaining that the investigation had

begun and would be completed as soon as possible. As

the investigation proceeded, attorneys from Sidley inter-

viewed many school-district employees, including cur-

rent and former principals, social workers, administra-

tive employees, and members of the School Board. Sidley

also interviewed a handful of third parties who had

never been employed by the School District. None of

the interviews were recorded. Instead, the attorneys

took notes of the witnesses’ answers and later prepared

written memoranda memorializing the interviews for

future use in Sidley’s legal advice to the Board. These

notes and memoranda are the subject of the present

discovery dispute.

Lassar and a Sidley colleague delivered an oral report

of the firm’s findings at a closed executive session of the

Board in April 2005, and later that month delivered a

written “Executive Summary”—marked “Privileged and

Confidential,” “Attorney-Client Communication,” and

“Attorney Work Product”—to the Board. This concluded

Sidley’s engagement; other lawyers have represented

the defendants throughout this litigation.

In the fall of 2006, the plaintiffs launched a discovery

effort aimed at forcing the disclosure of the contents of

Sidley’s investigation. They subpoenaed Lassar to appear

for a deposition and to produce documents in the firm’s

possession relating to Sidley’s work for the School Board.

6 No. 08-3344

After a motion to quash was denied, Sidley turned over

more than a thousand pages of documents. But the firm

withheld its notes and memoranda from the witness

interviews and other internal legal memoranda prepared

in connection with the investigation. These documents,

Sidley asserted, were protected by the attorney-client

privilege and the work-product doctrine. The plaintiffs

moved to compel production of the missing documents.

After a series of hearings—of which Sidley had only

informal notice and no opportunity to file a brief—the

district court ordered the School Board to disclose any

documents relating to Sidley’s investigation that it had

in its possession. The judge concluded that the Board

hired Lassar “as an investigator, not as an attorney,” and

therefore the attorney-client privilege did not apply. The

court later deferred ruling on the question of the docu-

ments in Sidley’s possession: “If the plaintiffs insist

that there [are] other documents or other information

which they are entitled to which you have not turned

over to the board, that’s a different issue. We haven’t

gotten to that issue.”

When it became clear that Sidley, not the School Board,

had the documents the plaintiffs wanted, the plaintiffs

turned their attention back to Sidley. They served a

second subpoena on Lassar, essentially a duplicate of the

first. Sidley responded by again asserting that the docu-

ments were protected by the attorney-client privilege

and the work-product doctrine. The plaintiffs then filed a

Motion for a Rule to Show Cause asking the court to hold

Lassar in contempt. This time the court solicited briefing

on the privilege and work-product claims, and the engage-

No. 08-3344 7

ment letter between Sidley and the Board and other

evidence about the nature of Sidley’s engagement was

brought before the court. After another hearing the court

declined to commence contempt proceedings because

Sidley had not yet been ordered to comply with the

subpoena. But the court summarily rejected Sidley’s

attorney-client privilege and work-product claims and

ordered the firm to produce the documents: “[T]he Court’s

prior ruling [regarding] attorney client privilege [will]

stand. . . . The materials requested by Plaintiffs [should]

be produced in accordance with the Court’s prior rul-

ing.” Sidley moved for reconsideration, but this motion

was denied. Sidley and District 100 appealed.2

II. Discussion

A. Appellate Jurisdiction under the Collateral-Order

Doctrine

Before proceeding to the merits of Sidley’s arguments,

we pause to address a recent development in the caselaw

governing the collateral-order doctrine, which supplied

our jurisdiction to hear an immediate appeal of the

district court’s disclosure order. In Mohawk Industries, Inc.

v. Carpenter, 130 S. Ct. 599, 603 (2009), the Supreme Court

held that discovery disclosure orders adverse to the

2

A different panel of this court recently resolved a separate

appeal by the school principal involving her claim of qualified

immunity. Sandra T.E. v. Grindle, No. 09-2920, 2010 WL 938047

(7th Cir. Mar. 17, 2010) (affirming denial of qualified immunity).

8 No. 08-3344

attorney-client privilege do not qualify for immediate

appeal under the collateral-order doctrine of Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949).

Resolving a circuit split, the Court held that “[p]ostjudg-

ment appeals, together with other review mechanisms,

suffice to protect the rights of litigants and preserve

the vitality of the attorney-client privilege.” Mohawk

Industries, 130 S. Ct. at 603.

Mohawk Industries, however, concerned the question

whether a party may immediately appeal a disclosure

order adverse to its claim of attorney-client privilege.

The order at issue here was against a nonparty to the

litigation; we have previously held that unlike a party,

a nonparty subject to a discovery order has no remedy

at the end of the litigation and so may obtain immediate

review of a discovery order rejecting a privilege claim.

See Burden-Meeks v. Welch, 319 F.3d 897, 900-01 (7th Cir.

2003). Burden-Meeks adhered to an existing line of circuit

cases, the most recent of which was Dellwood Farms, Inc. v.

Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir. 1997); the

opinion, however, noted a division in the circuits on the

question of a nonparty’s right to immediately appeal a

discovery order. Burden-Meeks, 319 F.3d at 900-01. It is

unclear whether our circuit’s approach to this ques-

tion—affirmed but questioned in Burden-Meeks—survives

the holding and rationale of Mohawk Industries. But

because our expedited order issued before Mohawk Indus-

tries was decided and at a time when our circuit law

permitted an immediate appeal, we simply note the

issue for the future but need not resolve it here.

No. 08-3344 9

B. Attorney-Client Privilege and Work-Product Doctrine

Sidley claims that the interview notes and legal memo-

randa its attorneys prepared in connection with the

District 100 investigation are protected from disclosure

by both the attorney-client privilege and the work-

product doctrine. The attorney-client privilege protects

communications made in confidence by a client and a

client’s employees to an attorney, acting as an attorney,

for the purpose of obtaining legal advice. See Upjohn Co.

v. United States, 449 U.S. 383, 394-99 (1981); Trammel v.

United States, 445 U.S. 40, 51 (1980). The privilege

belongs to the client, although an attorney may assert

the privilege on the client’s behalf. See United States v.

Smith, 454 F.3d 707, 713 (7th Cir. 2006). The work-product

doctrine protects documents prepared by attorneys in

anticipation of litigation for the purpose of analyzing

and preparing a client’s case. See F ED. R. C IV. P. 26(b)(3);

United States v. Nobles, 422 U.S. 225, 238-39 (1975); United

States v. Smith, 502 F.3d 680, 689 (7th Cir. 2007). Unlike the

attorney-client privilege, the attorney has an independent

privacy interest in his work product and may assert the

work-product doctrine on his own behalf; the doctrine’s

protection is not waived simply because the attorney

shared the information with his client. See Hobley v.

Burge, 433 F.3d 946, 949-50 (7th Cir. 2006).

To determine if a communication falls within the pro-

tection of the attorney-client privilege, we ask: (1) whether

“legal advice of any kind [was] sought . . . from a profes-

sional legal adviser in his capacity as such”; and

(2) whether the communication was “relat[ed] to that

10 No. 08-3344

purpose” and “made in confidence . . . by the client.”

United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997). It

appears that the district court assumed that when an

attorney performs investigative work, he is not acting as

an attorney for purposes of the privilege; this raises a

legal issue about the scope of the privilege, so our

review is de novo.3 See Jenkins v. Bartlett, 487 F.3d 482,

490 (7th Cir. 2007) (questions about scope of attorney-

client privilege reviewed de novo); see also Better Gov’t

Bureau, Inc. v. McGraw (In re Allen), 106 F.3d 582, 601 (4th

Cir. 1997) (classifying an error of the kind alleged in

this case as a “legal one”).

The judge’s decision in this case developed over a

series of hearings and numerous minute orders. As we

have noted, Sidley was not provided formal notice and

an opportunity to present a case for the privilege prior

to the first two of these hearings; only after the plaintiffs

moved for a contempt sanction against Lassar was

Sidley given formal notice and an opportunity to brief the

issue. It appears the judge was influenced in the earlier

3

The plaintiffs argue that the determination of whether an

attorney was acting as an attorney should be subject to clear-

error review. In this case, as we explain below, the court’s

error was a legal one: The court implicitly assumed that an

attorney hired to conduct an investigation never acts in his

capacity as an attorney. See, e.g., Better Gov’t Bureau, Inc. v.

McGraw (In re Allen), 106 F.3d 582, 601 (4th Cir. 1997). Thus, we

review the court’s order de novo. We nonetheless note that

even under a clear-error standard, we would reverse the

district court’s order.

No. 08-3344 11

hearings by the letters the school superintendent and

Board president sent to parents reassuring them of the

District’s desire to discover the truth about the circum-

stances surrounding Sperlik’s abuse and announcing the

Board’s decision to retain Lassar to “conduct a thorough

investigation.” In the judge’s view, these statements

pointed to the conclusion that Sidley was hired as an

investigator, and as such, the privilege did not apply.

Later on, in the proceedings on the plaintiffs’ Motion

for a Rule to Show Cause against Lassar, the judge all

but ignored the engagement letter, which should have

been the most important piece of evidence. The engage-

ment letter between Sidley and the School Board

explained that Sidley had been hired to “investigate the

response of the school administration to allegations of

sexual abuse of students” and “provide legal services in

connection with the specific representation.” There is

no indication that the judge actually considered the

engagement letter when it was brought to the court’s

attention in these later proceedings; rather, the judge

simply reiterated his earlier ruling that Sidley had been

hired as an investigator and the privilege therefore

did not apply.

This oversight was a mistake; the engagement letter

brings this case squarely within the Supreme Court’s

decision in Upjohn, which explained that factual investi-

gations performed by attorneys as attorneys fall com-

fortably within the protection of the attorney-client privi-

lege. In Upjohn a corporation’s in-house counsel investi-

gated the role of some of the corporation’s employees in

12 No. 08-3344

making potentially illegal payments to foreign govern-

mental officials; this investigation included interviews

with corporate officers and employees. A separate

federal tax inquiry into the alleged misconduct was

pending, and federal investigators attempted to obtain

the results of the corporation’s internal investigation by

issuing a summons for documents memorializing the

employees’ interviews with the corporation’s in-house

counsel. The Supreme Court held that the attorney-

client privilege applied. Upjohn, 449 U.S. at 401.

The Court began by noting that “[t]he first step in the

resolution of any legal problem is ascertaining the

factual background and sifting through the facts with

an eye to the legally relevant.” Id. at 390-91; see also Tram-

mel, 445 U.S. at 51 (“The lawyer-client privilege rests on

the need for the advocate and counselor to know all that

relates to the client’s reasons for seeking representation

if the professional mission is to be carried out.”). The

Court held that because “[t]he communications at issue

were made by Upjohn employees to counsel for Upjohn

acting as such, at the direction of corporate superiors

in order to secure legal advice from counsel,” the “com-

munications must be protected against compelled disclo-

sure.” Upjohn, 449 U.S. at 394-95. The federal investigators

could not force disclosure of the notes and other docu-

ments made by the in-house counsel to discover what

the employees had said but instead must interview the

employees themselves. Id. at 396.

Following Upjohn, other circuits have concluded that

when an attorney conducts a factual investigation in

No. 08-3344 13

connection with the provision of legal services, any notes

or memoranda documenting client interviews or other

client communications in the course of the investigation

are fully protected by the attorney-client privilege. See,

e.g., In re Allen, 106 F.3d at 603 (“The relevant question is

not whether [the attorney] was retained to conduct an

investigation, but rather, whether this investigation was

related to the rendition of legal services.” (internal quota-

tion marks omitted)); United States v. Rowe, 96 F.3d 1294,

1297 (9th Cir. 1996) (emphasizing that Upjohn made

“clear that fact-finding which pertains to legal advice

counts as ‘professional legal services’ ”). For example, in

In re Allen, 106 F.3d 582, the Fourth Circuit confronted a

district-court ruling virtually identical to the one at issue

in this case. There, the district court had concluded that

a special counsel hired by the West Virginia Attorney

General to conduct an investigation into alleged miscon-

duct within the state Department of Justice was acting

as an investigator and not an attorney because various

client letters described the attorney’s work as an “investi-

gation.” In reversing, the Fourth Circuit noted that “clients

often do retain lawyers to perform investigative work

because they want the benefit of a lawyer’s expertise

and judgment,” and “if a client retains an attorney to

use her legal expertise to conduct an investigation, that

lawyer is indeed performing legal work.” Id. at 604.

The same is true here. The engagement letter spells

out that the Board retained Sidley to provide legal serv-

ices in connection with developing the School Board’s

response to Sperlik’s sexual abuse of his students.

Sidley’s investigation of the factual circumstances sur-

14 No. 08-3344

rounding the abuse was an integral part of the package of

legal services for which it was hired and a necessary

prerequisite to the provision of legal advice about how

the District should respond. Although an engagement

letter cannot reclassify nonprivileged communications

as “legal services” in order to invoke the attorney-client

privilege, see Burden-Meeks, 319 F.3d at 899 (business

advice cannot be considered legal services), the conduct

of Sidley attorneys during the investigation confirms

that they were acting in their capacity as attorneys.

During the confidential interviews with school-district

employees, the attorneys provided so-called “Upjohn

warnings” emphasizing that Sidley represented the

School Board and not the employee and that the School

Board had control over whether the conversations re-

mained privileged. No third parties attended the inter-

views, the School Board received Lassar’s report of the

firm’s findings during an executive session not open to

the public, and the written executive summary that

Sidley turned over to the Board was marked “Privileged

and Confidential,” “Attorney-Client Communication,” and

“Attorney Work Product.” If more were needed, affida-

vits submitted into the record by Lassar, his Sidley col-

leagues, and the School Board president emphasized

that Sidley had been hired to provide legal advice in the

context of the facts it uncovered during the internal

investigation. Because the Sidley lawyers were hired

in their capacity as lawyers to provide legal ser-

vices—including a factual investigation—the attorney-

client privilege applies to the communications made

and documents generated during that investigation.

No. 08-3344 15

The fact that the privilege is invoked to protect com-

munications made by employees of a governmental

entity rather than a private party does not change the anal-

ysis. The plaintiffs suggest that shielding the contents of

Sidley’s interviews with school-district personnel—paid

for by the taxpayers and involving a matter of grave

public concern—is contrary to the public interest and

should not be permitted. We have previously held that the

privilege does not apply to communications between a

state officeholder and his state-government attorney

when the attorney is subpoenaed to give testimony before

a federal grand jury. See In re: A Witness Before the Special

Grand Jury 2000-2, 288 F.3d 289 (7th Cir. 2002) (general

counsel to Illinois governor could not assert attorney-client

privilege to avoid giving grand-jury testimony against

governor). But we did not articulate in In re: A Witness

a generally applicable exception for communications

between governmental employees and taxpayer-paid

counsel.

This is a civil case for damages against a local unit of

government and certain individual public employees, not

a grand-jury proceeding. Although the allegations are

very serious and there are important public as well as

private interests at stake, we think the policies under-

lying the attorney-client privilege have their normal

application. See Ross v. City of Memphis, 423 F.3d 596, 603

(6th Cir. 2005) (“The civil context presents different

concerns because government[al] entities are frequently

exposed to civil liability. The risk of extensive civil

liability is particularly acute for municipalities, which do

not enjoy sovereign immunity.”). Of course, the attorney-

16 No. 08-3344

client privilege protects not only the attorney-client

relationship in imminent or ongoing litigation but also

the broader attorney-client relationship outside the litiga-

tion context. Confidential legal advising promotes the

public interest “by advising clients to conform their

conduct to the law and by addressing legal concerns

that may inhibit clients from engaging in otherwise

lawful and socially beneficial activities.” United States v.

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

is true for public clients no less than private ones. The

public interest is best served when agencies of the gov-

ernment have access to the confidential advice of

counsel regarding the legal consequences of their past

and present activities and how to conform their future

operations to the requirements of the law. See also

Ross, 423 F.3d at 603 (“[G]overnment[al] entities are

well-served by the privilege [in the civil context], which

allows them to investigate potential wrongdoing more

fully and, equally important, pursue remedial options.”).

The work-product doctrine also protects the materials at

issue here from disclosure; and to the extent some of the

witnesses interviewed by Sidley attorneys were not

district employees, this is an independent rather than a

duplicate source of protection.4 Codified at Rule 26(b)(3)

4

Everyone in this appeal assumes that the attorney-client

privilege applies to statements made by witnesses regardless

of whether they were currently employed by the School

District at the time they were interviewed. An argument could

be made that the attorney-client privilege does not protect

(continued...)

No. 08-3344 17

of the Federal Rules of Civil Procedure, the work-product

doctrine is designed to serve dual purposes: (1) to

protect an attorney’s thought processes and mental im-

pressions against disclosure; and (2) to limit the circum-

stances in which attorneys may piggyback on the fact-

finding investigation of their more diligent counterparts.

See, e.g., Hickman v. Taylor, 329 U.S. 495 (1947).

The district court’s conclusion that the work-product

doctrine did not apply was subsumed in its conclusion

that Sidley was hired as an investigator, not an attorney,

and therefore its notes of witness interviews and

related documents were not protected. We rejected this

conclusion in the context of a work-product claim in

Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th

Cir. 1970). See id. at 492 (“Where an attorney personally

prepares a memorandum of an interview of a witness

with an eye toward litigation[,] such memorandum

4

(...continued)

statements made in conversations with former employees,

although every circuit to address this question has concluded

that the distinction between present and former employees

is irrelevant for purposes of the attorney-client privilege. See

In re Allen, 106 F.3d at 605-07; City of Long Beach v. Standard Oil

Co. of Cal. (In re Coordinated Pretrial Proceedings in Petroleum

Prods. Antitrust Litig.), 658 F.2d 1355, 1361 n.7 (9th Cir. 1981). We

need not decide this question because it makes no difference

in this case; the work-product doctrine would protect any

notes from interviews with former employees as equally as it

protects notes from interviews with third parties who

never worked for the School District.

18 No. 08-3344

qualifies as work product even though the lawyer func-

tioned primarily as an investigator.”). Work-product

protection applies to attorney-led investigations when the

documents at issue “can fairly be said to have been pre-

pared or obtained because of the prospect of litigation.”

Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976-77

(7th Cir. 1996) (internal quotation marks omitted). There

is a distinction between precautionary documents “devel-

oped in the ordinary course of business” for the “remote

prospect of litigation” and documents prepared because

“some articulable claim, likely to lead to litigation, [has]

arisen.” Binks Mfg. Co. v. Nat’l Presto Indus., Inc., 709

F.2d 1109, 1120 (7th Cir. 1983) (emphasis added) (altera-

tion in original) (internal quotation marks omitted).

Only documents prepared in the latter circumstances

receive work-product protection.

The plaintiffs maintain that the Sidley investigation

was only designed to quell public outrage and prevent

similar occurrences in the future, but the record simply

does not support that conclusion. The chronology of

events confirms that Sidley was hired to conduct the

District 100 investigation not merely in anticipation of

likely litigation but in response to the actual filing of this

lawsuit. True, the Board had other motivations as

well—it was responding to the public distress about the

allegations, the possible complicity of the school prin-

cipal, and the urgent need to implement prospective

protective measures—but this does not remove the in-

vestigation from the protection of the work-product

doctrine. That Sidley was not the District’s litigation

counsel is not dispositive. Sidley’s witness-interview notes

No. 08-3344 19

and memoranda were plainly prepared “with an eye

toward” this pending litigation and therefore qualify for

work-product protection.

In limited situations documents protected as attorney

work product are nonetheless discoverable if a party

can establish a “substantial need” for the documents

and cannot obtain equivalent materials without “undue

hardship.” FED. R. C IV. P. 26(b)(3)(A)(ii). Disclosure of

witness interviews and related documents, however, is

particularly discouraged. See, e.g., Upjohn, 449 U.S. at 398-

99 (“Forcing an attorney to disclose notes and memo-

randa of witnesses’ oral statements is particularly

disfavored because it tends to reveal the attorney’s mental

processes . . . .”). The plaintiffs suggest that they need

Sidley’s interview notes and memoranda for impeach-

ment, but we have been extremely reluctant to allow

discovery of attorney work product simply as impeach-

ment evidence. See, e.g., Hauger v. Chi., Rock Island & Pac.

R.R. Co., 216 F.2d 501, 508 (7th Cir. 1954) (“A court is not

justified in ordering a litigant to permit his adversary to

inspect witness statements, which he has procured in

preparing for trial, upon the adversary’s mere surmise or

suspicion that he might find impeaching material in the

statements.”). The plaintiffs acknowledge that the infor-

mation in Sidley’s files would really only bolster already

existing impeachment evidence contained in their own

investigation or in the police record. Under these circum-

stances, the case for disclosure is particularly weak. See

Gay v. P. K. Lindsay Co., 666 F.2d 710, 713 (1st Cir. 1981)

(statement in attorney’s notes that could be used to im-

peach witness was not discoverable when witness could

20 No. 08-3344

have been deposed). The plaintiffs have fallen far short

of showing they have a substantial need for the mate-

rials at issue here.

Finally, the plaintiffs contend that the defendants have

waived any right to rely on the attorney-client privilege

or the work-product doctrine because they failed to

provide a detailed privilege log detailing the documents

that were withheld. See F ED. R. C IV. P. 26(b)(5) (requiring

parties to claim the basis of the privilege and describe

the nature of the privileged documents in a way that

will allow other parties to assess the claim). The focus

of this dispute, however, is not on documents in the

defendants’ possession but documents in Sidley’s posses-

sion, and Sidley filed a proper privilege log adequately

describing what it withheld.

R EVERSED.

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