Christman v. Brauvin Realty Advisors, Inc.

185 F.R.D. 251, 1999 U.S. Dist. LEXIS 4860, 1999 WL 222035
District Court, N.D. Illinois·Decided April 12, 1999·No. No. 96 C 06025·Published·Cited by 7 cases

Opinion

MEMORANDUM OPINION AND ORDER

KEYS, United States Magistrate Judge.

This matter comes before the Court on Plaintiffs’ Motion to Compel Cezar Froelich, his law firm, Shefsky, Froelich & Devine (“Shefsky”), and his attorneys, McDermott, Will & Emery (“McDermott”), to produce documents that they claim are protected by the attorney-client privilege and/or the work-product doctrine. For the following reasons, Plaintiffs’ motion is granted in part, and denied in part.

BACKGROUND

Plaintiffs in this action are limited partners in four limited partnerships: Brauvin High Yield Fund L.P., Brauvin High Yield Fund L.P. II, Brauvin High Yield Fund L.P. Ill, and Brauvin Corporate Lease Program IV (collectively “the Brauvin partnerships”) Christman v. Brauvin Realty Advisors, Inc., No. 96 C 6025, 1998 WL 483528, at *1 (N.D.Ill. Aug. 12, 1998). Plaintiffs are challenging a proposed transaction in which the assets of the Brauvin partnerships would be acquired by Brauvin Real Estate Funds, L.L.C. (“Brauvin LLC”). Id. Jerome J. Brault, the managing general partner of the Brauvin partnerships, owns Brauvin LLC. Id. Defendants are the corporate general [254] partner of each partnership, Mr. Brault, and Brauvin LLC, the purchaser of the Brauvin Partnerships. Id. Mr. Froelich, Shefsky, and McDermott are not parties to the lawsuit.

The matter immediately before this Court involves the applicability of the attorney-client privilege and the work-product doctrine. (Plaintiffs’ Motion to Compel Production of Documents [Pis.’ Mot.Comp.] at 1.) On September 17, 1996, Mr. Froelich, then a general partner of the Brauvin partnerships, resigned from the partnerships. (Id. at 2.) On October 15, 1997, Plaintiffs issued a subpoena deuces tecum to Shefsky seeking documents related to the Brauvin partnerships. (Id.) Shefsky, as well as McDermott, filed privilege logs asserting that a total of 161 documents sought were protected by the attorney-client privilege and/or the work-product doctrine. (Id. at Exs. A, B.) After making a good faith attempt to resolve their differences, the parties failed to reach an agreement. (Id. at 2.) Plaintiffs, on September 15, 1998, filed a motion to compel production of these documents. (Id. at 1.) The Court ordered Shefsky and McDermott (hereinafter collectively referred to as “the objecting parties”) to respond by October 21, 1998; however, they failed to respond. (Plaintiffs’ Reply in Support of Motion to Compel Production of Documents [Pis.’ Reply Supp.] at 1.) On October 30,1998, Plaintiffs requested their motion to compel be granted in accordance with Local Rule 12(P). (Id.)

DISCUSSION

A. Local Rule 12 (P)

Local Rule 12(P) states:

[fjailure to file a supporting or answering memorandum shall not be deemed to be a waiver of the motion or a withdrawal of opposition thereto, but the court on its own motion or that of a party may strike the motion or grant the same without further hearing. Failure to file a reply memorandum within the requisite time shall be deemed a waiver of the right to file.

The rule provides courts with “considerable latitude.” Rhoden v. Allen, No. 96 C 260, 1997 WL 587654, at *3 (N.D.Ill. Sept. 17, 1997). If a party fails to respond to a motion, a court may proceed to rule on that motion without the party’s input. See id. at *1. (concerning a motion to dismiss, a motion for partial summary judgment, and a motion by the opposing party to extend time); see also Hines v. Sheahan, 845 F.Supp. 1265, 1266-67 (N.D.Ill.1994) (considering a motion to dismiss and denying the opposing party’s motion for an extended deadline).

Since there was no response to .Plaintiffs’ Motion to Compel, this Court will rule on the motion without further input from the objecting parties. However, the Court does not grant the motion merely because the objecting parties failed to respond.1 Instead, this Court, using its discretion, will analyze the merits of the objecting parties’ claims, which are set forth in the privilege logs already submitted. (Pis.’ Mot.Comp. at Exs. A, B.)

B. The Attorney-Client Privilege

The attorney-client privilege prevents disclosure of matters communicated to lawyers, in confidence, by their clients for the purpose of seeking legal advice. Swidler & Berlin v. United States, 524 U.S. 399, 118 S.Ct. 2081, 2086, 141 L.Ed.2d 379 (1998). The rationale for the privilege is two-fold. First, if a client is concerned about confidentiality, there is a substantial possibility that he or she will withhold information from his or her attorney, thereby receiving legal advice not based on all the facts. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). See Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (“full and frank communication between attorneys and their clients ... promote[s] broader public interests in the observance of law and the administration of justice.”).

[255] Nevertheless, the attorney-client privilege is strictly construed, Radiant Burners, Inc. v. American Gas Ass’n., 320 F.2d 314, 323 (7th Cir.1963), since courts agree that the scope of discovery should be broad in order to aid in the search for truth. United States v. White, 950 F.2d 426, 430 (7th Cir.1991); Allendale Mut. Ins. Co. v. Bull Data Sys. Inc., 152 F.R.D. 132, 135 (N.D.Ill. 1993).

1. Elements of the Attorney-Client Privilege

The Seventh Circuit has adopted Professor Wigmore’s formulation of the attorney-client privilege:

(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 WIGMORE § 2292; White, 950 F.2d at 430; United States v. Lawless, 709 F.2d 485, 487 (7th Cir.1983); Radiant Burners, 320 F.2d at 319. The burden is on the party claiming the privilege to prove each element. White, 950 F.2d at 430. Moreover, there cannot be a blanket assertion of privilege; instead, privilege must be raised document by document. Id.

2. Waiver of the Attorney-Client Privilege

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Christman v. Brauvin Realty Advisors, Inc., 185 F.R.D. 251, 1999 U.S. Dist. LEXIS 4860, 1999 WL 222035 (N.D. Ill. 1999).

185 F.R.D. 251 (Christman v. Brauvin Realty Advisors, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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