Blanchard v. EdgeMark Financial Corp.

192 F.R.D. 233, 2000 U.S. Dist. LEXIS 4815, 2000 WL 433491
CourtDistrict Court, N.D. Illinois
DecidedFebruary 18, 2000
DocketNo. 94 C 1890
StatusPublished
Cited by24 cases

This text of 192 F.R.D. 233 (Blanchard v. EdgeMark Financial Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blanchard v. EdgeMark Financial Corp., 192 F.R.D. 233, 2000 U.S. Dist. LEXIS 4815, 2000 WL 433491 (N.D. Ill. 2000).

Opinion

MEMORANDUM OPINION AND ORDER

ASHMAN, United States Magistrate Judge.

Presently before the Court are the following motions filed by Plaintiff: (1) Motion to Compel Production of Documents Transmitted to David Olson of Donaldson, Lufkin & Jenrette [311-1]; (2) Motion to Compel Production of Documents for Which Defendants Have Failed to Establish the Attorney-Client Privilege [310-1]; (3) Motion to Compel Production of Documents Relating to Treatment of EdgeMark Option Holders [309-1]; and (4) Motion to Compel Defendants to Produce Documents Relating to the Beale Settlement and For Reconsideration of This Court’s Ruling on the Motion to Quash the Subpoena to Attorney Gravelyn [312-1, 312-2]. Defendants resist these motions on the merits, but also contend that they should be denied as untimely. This contention is addressed first, followed by an analysis of each motion. This Court assumes familiarity with the background of this case.

I. The Motions To Compel Shall Be Heard

Defendants argue generally that all of the present motions are untimely because they were filed after the close of discovery. Oral discovery was closed on November 22, 1999, and these motions were filed a month [236]*236later. Defendants rely on Koerts v. MCI Telecommunications, Corp., 1996 WL 312078 (N.D.Ill.1996), and C.R. Bard, Inc. v. MS Sys., Inc., 1994 WL 386819 (N.D.Ill.1994), but in those cases, the party seeking to compel after the close of discovery offered no persuasive justification for the untimely motion. Here, in the month following the close of oral discovery, Plaintiffs counsel worked diligently to complete an aggressive discovery schedule, including the taking of final depositions, briefed and argued their motion to amend the class period, attempted 12(K) conferences, and drafted the present motions. Defendants have offered no persuasive reason to doubt these explanations, so this Court excuses Plaintiffs belated filing of the motions. See Bullen v. Thanasouras, No. 92 C 1796, 1993 WL 23767, at *2 (N.D.Ill. Feb.2, 1993) (Gottschall, J.) (granting motion to compel filed two weeks after discovery cutoff).

II. Plaintiff’s Motion To Compel Production of Documents Transmitted To David Olson of Donaldson, Lufkin & Jenrette

Plaintiff seeks documents identified in Defendants’ privilege logs that were sent to David Olson of Donaldson, Lufkin & Jenrette (“DLJ”). David Olson was EdgeMark’s investment banker in connection with its merger with Old Kent. Defendants resist producing these documents claiming that they are protected from disclosure by the attorney-client privilege and the work-product doctrine.

The Seventh Circuit has long embraced the articulation of the attorney-client privilege as set forth by Dean Wigmore:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALSAT COMMON LAW, § 2292 (1961); see also United States v. Evans, 113 F.3d 1457,1461 (7th Cir.1997). The privilege is construed narrowly and the party asserting it has the burden of establishing all of its essential elements. See id.; see also United States v. White, 970 F.2d 328, 334 (7th Cir. 1992). Generally, the voluntary disclosure of privileged attorney-client communications constitutes a waiver of the privilege as to all other such communications dealing with the same subject matter. See Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1126 (7th Cir.1997); Powers v. Chicago Transit Auth., 890 F.2d 1355,1359 (7th Cir.1989).

Plaintiff argues that (1) the documents are not privileged because they reveal communications for the purpose of obtaining financial, and not legal, advice; and (2) even if they are privileged, by disclosing communications between EdgeMark and Mr. Olson, Defendants have waived the privilege as to all other documents pertaining to the same subject matter.

Defendants have withheld seven categories of documents, six on the grounds of attorney-client privilege. According to the privilege log attached as Exhibit C to Plaintiffs motion, the majority of documents involve communications between EdgeMark (or its counsel) and Old Kent (or its counsel) with copies to David Olson of DLJ. We assume without deciding that the documents contain privileged communications. EdgeMark’s transmissions to a third party (i.e., David Olson), Plaintiff argues, is inconsistent with the assertion of a privilege, and it is therefore destroyed. Defendants contend that after Mr. Hedlund (counsel for Plaintiff) allegedly threatened to sue EdgeMark, EdgeMark and DLJ’s interests became “inextricably linked” because the threatened litigation might have jeopardized the merger, and therefore the privilege is still intact under the common-interest rule.

The general rule is “[a]ny voluntary disclosure by the holder of the attorney-client privilege is inconsistent with the attorney-client confidential relationship and thus waives the privilege.” Powers v. Chicago Transit Auth., 890 F.2d 1355, 1359 (7th Cir. 1989). A narrow exception to this rule, identified in In re Grand Jury, 106 F.R.D. 255, 258 (D.N.H.1985), may exist where the disclosure to the third party is for the purpose of assisting the attorney in rendering legal advice. See also In re Consolidated Litig. [237]*237Concerning Int’l Harvester’s Disposition of Wis. Steel, 666 F.Supp. 1148, 1156-57 (N.D.Ill.1987). Here, the transmissions to Mr. Olson were not made for the purpose of assisting EdgeMark counsel’s rendering of legal advice because the threatened litigation did not implicate any legal interest of DLJ, only its financial interest. Therefore, assuming that all the communications identified in Exhibit C are privileged, the privilege was waived by their transmission to a third party, unless the common-interest rule applies.

Defendants urge the application of the “joint-defense” doctrine (now more commonly identified as the “common-interest” rule), which effectively extends the scope of the privilege to communications made in the course of an ongoing enterprise and intended to further the enterprise. See Evans, 113 F.3d at 1467. The common-interest rule protects from disclosure communications between one party and an attorney for another party “where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.” Id. The common interest must be a legal one, not commercial or financial. See Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 447 (S.D.N.Y.1995).

Defendants have not demonstrated that DLJ’s legal interest in the threatened EdgeMark litigation was anything more than peripheral.

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Cite This Page — Counsel Stack

Bluebook (online)
192 F.R.D. 233, 2000 U.S. Dist. LEXIS 4815, 2000 WL 433491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blanchard-v-edgemark-financial-corp-ilnd-2000.