Gerba v. Museum

338 F.Supp.3d 851

John GERBA, Plaintiff,

v.NATIONAL HELLENIC MUSEUM, Defendant.

No. 17 C 7235

United States District Court, N.D. Illinois, Eastern Division.

Signed October 16, 2018

Ryan F. Stephan, Haley Renee Jenkins, Stephan, Zouras, LLP, Chicago, IL, for Plaintiff.

Heather R.M. Becker, Matthew Patrick Kellam, Laner Muchin, Ltd., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

INTRODUCTION

The plaintiff, John Gerba, has filed a motion to compel production of documents that the defendant, the National Hellenic Museum, has withheld under a claim of attorney-client privilege. Initially, in his motion, Mr. Gerba claims that 23 documents – emails numbered 1-8, 10-13, 20-21, 35-41, 47, and 49 in the Museum's privilege log – are being improperly withheld. [Dkt. # 51, at 2]. But he only raises and develops arguments as to documents nos. 3-8, 10-11, 20-21, 35-36, 38-39, 41, 47, and 49 in his brief. [Dkt. # 51, at 5, 6]. So, any arguments he might have made as to documents nos. 1-2, 12-13, 37, and 40, would be deemed waived, and those documents need not be produced. See Crespo v. Colvin , 824 F.3d 667, 674 (7th Cir. 2016). But, as establishing the privilege as to those documents is, after all, the Museum's burden, United States v. BDO Seidman , 337 F.3d 802, 811 (7th Cir. 2003) ; In re Grand Jury Proceedings , 220 F.3d 568, 571 (7th Cir.2000) ; United States v. Evans , 113 F.3d 1457, 1461 (7th Cir.1997), those entries will be reviewed along with the others.

The background of this dispute is set out in some detail in Judge Dow's summary of Mr. Gerba's allegations in his Opinion of June 21, 2018 [Dkt. # 30]. Thus, it will not be revisited in depth here, except to briefly recount about the subject matter of most of these emails, a purported stalking incident involving Mr. Gerba. The Museum fired Mr. Gerba in March of 2017. [Dkt. # 31, ¶. 34]. Thereafter, on June 19, 2018, the Museum's education and public programs manager, Dimitra Georgouses, went to Cook County Circuit Court and sought an order of protection against Mr. Gerba. [Dkt. # 31, ¶. 36]. She alleged that after her boyfriend dropped her off at work on June 17, 2018, Mr. Gerba followed him for 18 miles. She claimed he emailed her and told her he was sending her a present, which he did. He would only have gotten her address from her employment file. She further alleged that he inappropriately texted and emailed her, trying to find ways to see her. [Dkt. # 31-3, at 5-7]. The judge didn't dismiss the case, but because he did not feel there was an emergency alleged he did not issue an Order. [Dkt. # 31-3, at 8-9]. Ms. Georgouses' claim came to nothing, however, as she failed to appear for her hearing, and her petition was therefore dismissed. [Dkt. # 31-4].

In October of 2017, Mr. Gerba filed suit against the Museum, charging that his firing was a result of his complaints about, and refusal to go along with, some alleged financial legerdemain. He brought a claim under the Illinois Whistleblower Act, as well as claims for retaliatory discharge and defamation. That Complaint didn't survive the Museum's motion to dismiss: Mr. Gerba conceded he had no claim under the Illinois Whistleblower Act, because he never disclosed any information to the government. Judge Dow dismissed his other two claims, finding his allegations didn't support claims for defamation or retaliatory discharge. [Dkt. # 30]. Mr. Gerba tried again with his claims for retaliatory discharge and defamation on July 17, 2018, filing a First Amended Complaint. It has quickly become the target of another motion to dismiss from the Museum.

As is too often the case, discovery has become contentious, especially regarding the claims of privilege. Mr. Gerba filed the first Motion to Compel on this topic in May, but it appeared that the parties hadn't fully complied with Local Rule 37.2, and thus Judge Dow had them meet and confer in an effort to reach a compromise. The Museum then amended its privilege log. That didn't do the trick, and the parties continued to dispute the applicability of the privilege, with Mr. Gerba filing his current Motion to Compel on September 26^th.

A.

First, the basics. The attorney-client privilege is "the oldest of the privileges for confidential communication known to the common law." United States v. Jicarilla Apache Nation , 564 U.S. 162, 169, 131 S.Ct. 2313, 180 L.Ed.2d 187 (2011). It is intended 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 Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Yet the privilege is "in derogation of the search for the truth" and so it must be strictly confined and applied only where necessary to achieve its purpose. Hamdan v. Indiana University Health North Hospital, Inc. , 880 F.3d 416, 421 (7th Cir. 2018) ; United States v. Leonard-Allen , 739 F.3d 948, 953 (7th Cir. 2013) ; United States v. BDO Seidman, LLP , 492 F.3d 806, 815 (7th Cir. 2007). In practice, it has become a discovery bargaining chip, with one side often making sweeping, blanket claims of privilege, while the other claims entitlement to almost everything that party has. The two sides bargain and get as far as they can – as Local Rule 37.2 requires them to do – and then leave the final call to the court.

That can be a risky move. Discovery rulings are committed to the court's very broad discretion. Scott v. Chuhak & Tecson, P.C. , 725 F.3d 772, 784 (7th Cir. 2013) ; United States v. Frederick , 182 F.3d 496, 499 (7th Cir. 1999). That can mean that even if one side is "right," the court can still be "right" if it rules against them. See Chicago Reg'l Council of Carpenters Pension Fund v. Celtic Floor Covering, Inc. , 316 F.Supp.3d 1044, 1046 (N.D. Ill. 2018) ; Infowhyse GmbH v. Fleetwood Grp. , 2016 WL 4063168, at *2 (N.D. Ill. July 29, 2016) ; Native Am. Arts, Inc. v. Peter Stone Co., U.S.A. , 222 F.Supp.3d 643, 648 (N.D. Ill. 2016). Indeed, in matters of discretion, "it is possible for two judges, confronted with the identical record, to come to opposite conclusions and for the appellate court to affirm both." United States v. Williams , 81 F.3d 1434, 1437 (7th Cir. 1996). The parties here have been unable to resolve all of their disputes have left the matter for the court's resolution.¹

There are certain points that are important here. The first is that the Museum has submitted a privilege log – amended – and under Fed.R.Civ.P 26(b)(5), that log has to describe the nature of the documents being withheld in a manner that will allow the reader to assess the validity of the claim of privilege. Given Mr. Gerba's arguments about the log, some additional points are also important. First, the mere fact that non-attorneys might be involved in a communication or might be the only ones involved does not necessarily mean their communication isn't privileged – although it often is not, of course. Communications between the client and the clients's representative or between the client's representatives can be privileged if they reflect the lawyer's thinking or are made for the purpose of eliciting the lawyer's professional advice or other legal assistance. United States v. Leonard-Allen , 739 F.3d 948, 953 (7th Cir. 2013) ; BDO Seidman , 492 F.3d at 815.

Second, just because an attorney happens to be a board member of the Museum doesn't mean the Museum can't consult him or her for legal advice. As such, communications made for that purpose are privileged. See Sandra T.E. v. S. Berwyn Sch. Dist. 100 , 600 F.3d 612, 618 (7th Cir. 2010) (question is whether legal advisor was acting in his capacity as legal advisor); Matter of Grand Jury Proceeding , 68 F.3d 193, 196 (7th Cir. 1995) ("A client does not lose the privilege merely because his attorney serves a dual role."). Mr. Gerba's complaints in this regard are understandable for, as the judge in Ms. Georgouses' case said, the Museum appears to be "filled with lawyers ...." [Dkt. # 31-3, at 5]. But, nevertheless, the privilege protects communications where board members or family members or friends of the Museum are wearing their legal counselor hats. Again, in the end, the question isn't whether an attorney is someone's cousin, it's whether the communication was made in confidence, in the connection with the provision of legal services, to an attorney, and in the context of an attorney-client relationship. Shaffer v. American Medical Ass'n , 662 F.3d 439, 446 (7th Cir. 2011) ; Sandra T.E. , 600 F.3d at 618. With that in mind, review of the Museum's privilege log leads to the following conclusions.

B.

Emails 1-4 – These emails are communications from the President of the Museum to the Museum's human resources director and the Museum board member and attorney whom the Museum also consults for legal advice and members of his firm. [Dkt. # 55-1]; see Sandra T.E. , 600 F.3d at 618 (question is whether legal advisor was acting in his capacity as legal advisor); Matter of Grand Jury Proceeding , 68 F.3d 193, 196 (7th Cir. 1995) ("A client does not lose the privilege merely because his attorney serves a dual role."). The matter discussed is a purported incident of stalking by Mr. Gerba. That's certainly a topic that would inspire a consultation with an attorney and these documents consequently are privileged.

Email 5 – communication from Museum president to HR director said to be "forwarding/summarizing information conveyed to attorney for purpose of obtaining legal advice." Again, this is related to the stalking incident. The fact that the two individuals are non-attorneys does not mean the privilege cannot apply, as Mr. Gerba suggests. See Roth v. Aon , 254 F.R.D. 538, 541 (N.D. Ill. 2009) (individuals in an organizational structure are permitted to "consult with one another" about an attorney's legal advice "so that all relevant information is known before making a legal decision"...