Case: 1:10-cv Document #: 189 Filed: 11/09/12 Page 1 of 8 PageID #:2937

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1 Case: 1:10-cv Document #: 189 Filed: 11/09/12 Page 1 of 8 PageID #:2937 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION LORI WIGOD; DAN FINLINSON; and SANDRA FINLINSON, on behalf of themselves and all others similarly situated, v. Plaintiffs, WELLS FARGO BANK, N.A. d/b/a WELLS FARGO HOME MORTGAGE, f/k/a WACHOVIA MORTGAGE, FSB, and d/b/a AMERICA S SERVICING CO., Defendant. No. 10 C 2348 Magistrate Judge Maria Valdez ORDER This matter is before the Court on Plaintiffs Motion to Overrule Defendant s Claims of Privilege and Work Product with Respect to [Doc. No. 155]. For the reasons that follow, the motion is granted in part and denied in part. BACKGROUND On July 9, 2012, defendant Wells Fargo produced to Plaintiffs a chain of employee s regarding the handling of media inquiries about the present lawsuit. Wells Fargo advised Plaintiffs counsel that the chain was subject to the attorney-client privilege and work product doctrine and was inadvertently produced. Wells Fargo sought the return of the documents pursuant to the clawback

2 Case: 1:10-cv Document #: 189 Filed: 11/09/12 Page 2 of 8 PageID #:2938 provision in the parties protective order. After meeting and conferring on the matter, Plaintiffs agreed to return all but one of the s in the chain. The at issue was written by Paul Sutor, who works on the litigation support team and is directed by Wells Fargo in-house counsel. (Def s. Mem. in Opp n at 1. According to Defendant, Wells Fargo s in-house managing counsel had previously advised employees of the status of the litigation and the legal claims and theories of the case. In response, Jim Hines, a member of the media relations department, asked for additional advice regarding the legal framework of the lawsuit. He was advised by the Senior Vice President of Default Servicing that the Servicing Litigation Support team was working with the legal department and would provide him with requested information. Sutor then sent Hines the at issue, which includes his analysis of the factual basis of plaintiff Wigod s claims and briefly summarizes some conclusions made by the legal department. DISCUSSION I. Attorney-Client Privilege Because this action is premised on diversity jurisdiction, the application of the attorney-client privilege is governed by state law. Fed. R. Evid. 501; see Equity Residential v. Kendall Risk Mgmt., Inc., 246 F.R.D. 557, (N.D. Ill Under Illinois law, the attorney-client privilege applies if the statement originated in the confidence that it would not be disclosed, was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services, and remained confidential. Equity Residential, 246 F.R.D. at 563 (citations omitted ( Attorney- 2

3 Case: 1:10-cv Document #: 189 Filed: 11/09/12 Page 3 of 8 PageID #:2939 client privilege extends to both communication from client to attorney, as well as from attorney to client.. Confidential communications made by a client to representatives of the attorney, such as paralegals or secretaries, are also privileged. Id. The party seeking to shield a document from disclosure has the burden of showing facts which give rise to the privilege. Consol. Coal. Co. v. Bucyrus-Erie Co., 432 N.E.2d 250, 257 (Ill ( Its potential to insulate so much material from the truth-seeking process convinces us the privilege ought to be limited for the corporate client to the extent reasonably necessary to achieve its purpose.. For corporate clients, Illinois utilizes the control-group test to determine whether communications between an employee and corporate counsel are subject to the privilege. Id. Under this test, communications are not privileged unless they are made by or to an employee within the control group, which is defined as an employee whose advisory role to top management any particular area is such that a decision would not normally be made without his advice or opinion, and whose opinion in fact forms the basis of any final decision by those with actual authority. Id. at 258 ( [T]he individuals upon whom [a control group member] may rely for supplying information are not members of the control group. ; see also Motorola, Inc. v. Lemko Corp., No. 08 C 5427, 2010 WL , at *2 (N.D. Ill. June 1, 2010 (stating that because the state uses the control-group test, [t]he scope of attorneyclient privilege protection is arguably narrower under Illinois law than under federal law. 3

4 Case: 1:10-cv Document #: 189 Filed: 11/09/12 Page 4 of 8 PageID #:2940 Plaintiffs contend that the is not privileged because it does not reflect information disclosed to or advice from an attorney. Plaintiffs further argue that the was intended solely to assist Hines in responding to media inquiries about the litigation and thus does not concern legal advice. Wells Fargo responds that the is protected from disclosure because it concerns legal advice provided by the company s attorneys and otherwise satisfies the requirements of the attorney-client privilege. The indicates that Sutor s team had researched and discussed the case with the legal department. According to Wells Fargo, the wording of the reflects the opinions of the corporate attorneys with whom he spoke. The Court finds that even if the were to include legal advice, the attorney-client privilege does not shield it from disclosure. While Defendant s response claims that Sutor is directed by Wells Fargo in-house counsel, (Def. s Mem. in Opp n at 1, he is clearly not a member of the legal department, as evidenced by his use of the third person when referring to Legal in the . Wells Fargo identifies Sutor as a member of the Litigation Support Team but fails to provide his job title or job description. Wells Fargo does not even describe the membership, structure, or function of the Litigation Support Team and thus has not shown that a member of the team should be considered a representative of the legal department. For the same reasons, Wells Fargo has offered no facts from which this Court could conclude that Sutor is a member of Wells Fargo s control group, as defined by Illinois law. See Motorola, 2010 WL Therefore, 4

5 Case: 1:10-cv Document #: 189 Filed: 11/09/12 Page 5 of 8 PageID #:2941 Defendant has failed to meet its burden of demonstrating that any communications made by or to Sutor are subject to the attorney-client privilege. II. Work Product Doctrine The application of the work product doctrine is governed by federal law. See A.O. Smith Corp. v. Lewis, Overbeck & Furman, No. 90 C 5160, 1991 WL , at *1 (N.D. Ill. Sept. 23, The doctrine is distinct from, and broader than, the attorney-client privilege. Blanchard v. EdgeMark Fin. Corp., 192 F.R.D. 233, 238 (N.D. Ill. 2000; Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84, 86 (N.D. Ill The work product doctrine protects documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party=s attorney, consultant, surety, indemnitor, insurer, or agent. Fed. R. Civ. P. 26(b(3(A. In determining whether a document was prepared in anticipation of litigation, the threshold question generally is whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared for or obtained because of the prospect of litigation. North Shore Gas Co. v. Elgin, Joliet & E. Ry. Co., 164 F.R.D. 59, 61 (N.D. Ill (citation omitted (emphasis added; see Allendale, 145 F.R.D. at 86. Therefore, documents prepared for other reasons, such as documents created in the ordinary course of business, cannot be withheld as work product. See Caremark, Inc. v. Affiliated Computer Servs., Inc., 195 F.R.D. 610, 614 (N.D. Ill. 2000; see also In re General Instrument Corp. Sec. Litig., 190 F.R.D. 527, 530 (N.D. Ill ( [A] 5

6 Case: 1:10-cv Document #: 189 Filed: 11/09/12 Page 6 of 8 PageID #:2942 document prepared for both legal and non-legal review is not privileged. ; Allendale, 145 F.R.D. at 87 (holding that documents prepared in the ordinary course of business are not work product even if litigation is imminent or ongoing. The work product doctrine, however, does not bar disclosure in all circumstances. An otherwise protected document may be discoverable if the opposing 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. Fed. R. Civ. P. 26(b(3(A(ii. But even if discovery is ordered, Rule 26 provides that the mental impressions, conclusions, opinions, or legal theories of a party s attorney or other representative concerning the litigation must not be disclosed. Fed. R. Civ. P. 26(b(3(B. The contains both Sutor s own work product and a summary of the work product of Wells Fargo s attorneys. Plaintiffs contend that the is not protected by the work product doctrine because it was not prepared in anticipation of litigation, and even if it were, it is discoverable factual work product. Wells Fargo responds that Sutor s is protected by the work product doctrine because it was created in connection with the present litigation. (Def. s Mem. in Opp n at 4. Wells Fargo is correct that, in certain circumstances, documents created by or sent to public relations employees may be governed by the work product doctrine. See In re Copper Mkt. Antitrust Litig., 200 F.R.D. 213, (S.D.N.Y However, public relations work product is not per se protectable. See Calvin Klein Trademark Tr. v. Wachner, 198 F.R.D. 53, 55 6

7 Case: 1:10-cv Document #: 189 Filed: 11/09/12 Page 7 of 8 PageID #:2943 (S.D.N.Y ( [I]t is obvious that as a general matter public relations advice, even if it bears on anticipated litigation, falls outside the ambit or protection of the so-called work product doctrine embodied in Rule 26(b(3.. Copper Market, cited by Defendant, relied on uncontroverted affidavits establishing that the public relations materials were created as part of the litigation strategy, not merely in connection with the lawsuit. See id. at 221; see also Hobley v. Burge, 433 F.3d 946, 949 (7th Cir ( The purpose of the qualified privilege for attorney work product... is to establish a zone of privacy in which lawyers can analyze and prepare their client s case free from scrutiny or interference by an adversary.. Wells Fargo s brief states only that in response to an inquiry by Hines, a member of the media relations department, about the legal framework of the lawsuit, the Senior Vice President of Default Servicing apparently directed Sutor (whose title is unknown to provide Hines with the requested information. Defendant has therefore failed to establish that the work product created by Sutor is protected from disclosure. However, the portions of Sutor s describing the work product of members of the legal department reveal attorneys mental impressions and legal 1 theories about the case and are protected against disclosure by Rule 26(b(3(B. 1 The portions to be redacted are the first sentence of the fourth paragraph and the first sentence of the fifth paragraph. 7

8 Case: 1:10-cv Document #: 189 Filed: 11/09/12 Page 8 of 8 PageID #:2944 CONCLUSION For the foregoing reasons, Plaintiffs Motion to Overrule Defendant s Claims of Privilege and Work Product with Respect to [Doc. No. 155] is granted in 2 part and denied in part. SO ORDERED. ENTERED: DATE: November 9, 2012 HON. MARIA VALDEZ United States Magistrate Judge 2 The Court allowed the briefs to be conditionally filed under seal. In light of this order, the parties are ordered to file public versions of the briefs, with any protected information or exhibits redacted. 8