Canel v. Lincoln National Bank

179 F.R.D. 224, 1998 U.S. Dist. LEXIS 7550, 1998 WL 217525
CourtDistrict Court, N.D. Illinois
DecidedApril 30, 1998
DocketNo. 96 C 6595
StatusPublished
Cited by6 cases

This text of 179 F.R.D. 224 (Canel v. Lincoln National Bank) 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
Canel v. Lincoln National Bank, 179 F.R.D. 224, 1998 U.S. Dist. LEXIS 7550, 1998 WL 217525 (N.D. Ill. 1998).

Opinion

MEMORANDUM OPINION AND ORDER

LEVIN, United States Magistrate Judge.

Presently pending before this court is Plaintiff Class’ motion to compel testimony and to compel production of documents. For the reasons set forth below, this court denies the motion.

RELEVANT BACKGROUND

This lawsuit arises out of a cash-out merger of Lincoln National Bank (“Lincoln”) into Aetna Bank (“Aetna”), now known as Corus Bank (“Corus”). Class Plaintiff was a minority shareholder in Lincoln. In connection with the merger, the directors of Lincoln sent Plaintiff and the other minority sharer holders of Lincoln an Informational Statement notifying them, among other things, of the merger and the $500 per share cash-out price. On October 8,1996, Plaintiff filed suit against Lincoln, its majority shareholder and its directors alleging that the Information Statement was fraudulent and misleading and that the $500 per share cash-out price was not a fair price.

On October 6 and 7, 1997, Plaintiffs counsel deposed Robert J. Glickman (“Glickman”) and David H. Johnson, III (“Johnson”). Pri- or to the merger, Glickman was President and CEO of Defendant River Forest Ban-corp, Inc. (Lincoln’s majority shareholder) and President and a director of Lincoln. Johnson was President of Aetna, Executive Vice President of River Forest and a director of Lincoln. Glickman and Johnson testified at their depositions that theyjdetermined the $500 cash-out price together and recommended it to the Lincoln Board of Directors, who approved it. Glickman and Johnson identified Larry Wyrobek and Jay Kaun as the only other Lincoln bank officers who participated in setting the $500 cash-out price. (Gliekman Dep. at 7, 19-30; Johnson Dep. at 9-10, 22-23.)

On October 30,1997 and January 16, 1998, Plaintiffs counsel deposed Scott Mitchell (“Mitchell”), Assistant Vice President of Corus Bank. Although Mitchell was employed by Lincoln at the time of the merger, it is undisputed that he was wholly uninvolved in the merger and, in particular, was not in any [226]*226way involved with the subject cash-out price or the setting of same. (Mitchell Dep. at 30.)

In August of 1997, after commencement of the litigation, Mitchell prepared a memorandum at.the direction of Tim Taylor (“Taylor”), Vice President of Corus, to assist in assessing litigation risks. (See Mitchell Dep. at 48-49.) This memorandum, and a prior draft, are at issue in this motion to compel (and are referred to collectively by this court for purposes of this opinion as “Document A”).

On October 1, 1997, Defendants provided Plaintiff with a privilege log that designated Document A as privileged work product. The privilege log describes the documents as follows:

Date Document Description Authc 3) Recipient(s) Privilege Claimed

8/4/97; updated 8/7/97 7-page memorandum analyzing various valuation methods for LNB stock which might be used in minority shareholder suit and possible exposure created by each method Scott Mitchell Tim Taylor and Dave Johnson Work Product

8/28/97; updated 9/2/97 8-page memorandum analyzing legal, factual, and financial issues raised by minority shareholder suit Scott Mitchell Tim Taylor and Dave Johnson Work Product

PLAINTIFF’S MOTION TO COMPEL

Plaintiffs motion to compel seeks production of Document A. Plaintiff argues that Defendant waived work product protection with respect to Document A by allegedly having produced some privileged documents relating to the same subject matter as Document A. Relatedly, Plaintiff argues that Mitchell should be compelled to answer certain questions propounded to him during his deposition.

ANALYSIS

I. SUBJECT MATTER WAIVER OF DOCUMENTA.

Plaintiff initially contends that Defendants have waived work product protection with respect to Document A and that Document A should, therefore, be produced. Plaintiff asserts that, here, Defendants have produced certain privileged documents relating to the same subject matter as Document A and thereby have waived any work product protection for Document A. Plaintiff maintains that a party that produces some privileged documents waives that protection with respect to all other documents pertaining to the same subject matter, citing Neal v. Honeywell, No. 93 C 1143, 1995 WL 591461, at *6 (N.D.Ill. Oct. 4, 1995).

At the threshold, Defendants argue that Document A consists of “opinion” work product and that subject matter waiver is not applicable to such “opinion” work product.1 This court agrees.

Although Plaintiff correctly notes that, under certain circumstances, the production of some privileged documents waives privilege as to all documents of the same subject matter, that rule is not absolute. Most notably here, courts have consistently held that there exists no subject matter waiver for the kind of work product expressly defined in Fed.R.Civ.P. 26(b)(3) as “the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation” (which is commonly termed “opinion” work product). (Emphasis added.) See, e.g., Neal v. Honeywell, Inc., No. 93 C 1143, 1995 WL 591461, at *7 (N.D.Ill. Oct. 4, 1995); Abbott Labs. v. Airco, Inc., No. 82 C 3292, 1985 WL [227]*2273596, at *8 (N.D.Ill. Nov. 4, 1985); Nye v. Sage Prods., 98 F.R.D. 452, 454 (N.D.Ill. 1982).

Document A contains such “opinion” work product.2 Mitchell was not in any way involved in the valuation of the stock at the time of the subject merger. MitcheU prepared Document A after Plaintiff filed this lawsuit for the sole purpose of assessing the risks of litigation. According to Defendants and the privilege log, Document A consists of Mitchell’s opinion analysis of bank stock valuation methods for the purpose of assessing the merit of Plaintiffs claim that $500 was an unfair price.3

Plaintiff attempts to distinguish this case by arguing that “opinion” work product protection “concerns only an attorney’s mental impressions, conclusions, opinions and legal theories.” (Pl. Reply at 4, emphasis added.) Although Plaintiff correctly notes that the cases cited by the parties coricern an attorney’s “opinion” work product, the distinction alleged by Plaintiff was not raised or addressed in those cases and nothing in those cases in any way intimates that such protection would not extend to the “opinion” work product of a party’s representative. In fact, Rule 26(b)(3) expressly defines so-caUed “opinion” work product as “the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” (Emphasis added.) See also Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 n. 4 (7th Cir.1996). And other courts considering this issue have held that “opinion!’ work product protection extends to a party’s representative. See, e.g., Duplan Corp. v. Peering Milliken, Inc., 540 F.2d 1215, 1219 (4th Cir.1976); Smedley v. Travelers Ins. Co., 53 F.R.D.

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Bluebook (online)
179 F.R.D. 224, 1998 U.S. Dist. LEXIS 7550, 1998 WL 217525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/canel-v-lincoln-national-bank-ilnd-1998.