Ritacca v. Abbott Laboratories

203 F.R.D. 332, 49 Fed. R. Serv. 3d 1052, 2001 U.S. Dist. LEXIS 4366, 2001 WL 363279
CourtDistrict Court, N.D. Illinois
DecidedApril 9, 2001
DocketNo. 99 C 6520
StatusPublished
Cited by23 cases

This text of 203 F.R.D. 332 (Ritacca v. Abbott Laboratories) 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
Ritacca v. Abbott Laboratories, 203 F.R.D. 332, 49 Fed. R. Serv. 3d 1052, 2001 U.S. Dist. LEXIS 4366, 2001 WL 363279 (N.D. Ill. 2001).

Opinion

MEMORANDUM OPINION AND ORDER

ASHMAN, United States Magistrate Judge.

Plaintiff, Richard Ritacca, filed a complaint against Defendant, Abbott Laboratories, seeking relief under the Americans with Disabilities Act for discrimination and Illinois common law for retaliatory discharge. Presently before this Court is the remainder of Ritacca’s Renewed Motion to Compel,1 which demands the production of certain documents in Abbott’s possession. Abbott maintains that these documents are protected from disclosure by the attorney-client privilege. For the following reasons, Ritacca’s motion is granted as to all documents that Abbott is withholding on the basis of attorney-client privilege.

I. Background

The underlying dispute between Ritacca and Abbott contains an aberrant mix of intimate facts and upsetting allegations that makes for an engaging case: unauthorized Internet activity, doctored expense accounts, discrimination, and retaliation. Ultimately, the case boils down to the reason or reasons for Ritacca’s termination of employment in February 1999. Ritacca propounds discrimination and retaliation, while Abbott posits poor job performance. The winner will be determined on a later day.

For now, we settle an intermediate but nonetheless just as contested issue — what documents Abbott must turn over to Ritacca pursuant to a document request that Ritacca served on Abbott sometime prior to August 2000. At that time, Ritacca asked Abbott to produce any document in its possession that has a connection to the underlying litigation. Abbott responded by delivering a great quantity of documents to Ritacca, each stamped with its own Bates number. Importantly, not a single document request was specifically objected to on the basis of privilege.2

After reviewing the documents, Ritacca determined that the document production was deficient in two ways. First, Ritacca believed that some responses were inadequate while others were nonresponsive. Second, Ritacca noticed that Abbott failed to verify that all documents responsive to Ritacca’s request had been produced. Ritacca promptly conveyed these concerns to Abbott in a letter sent by facsimile on August 5, 2000, but, for one reason or another, Abbott took no immediate action.

When the parties met at a deposition on August 7, 2000, Abbott acknowledged receipt of the letter, but stated that it did not have an opportunity to investigate Ritacca’s concerns. Two days later, no word came from [334]*334Abbott, even though Ritacca asked Abbott to respond to the letter by that date. A telephone conference one week later also proved unproductive, with Abbott stating that it would not be in a position to address Ritacca’s concerns until four days later. The four days came and passed without communication from Abbott regarding the issues raised in the letter.

Approximately one week later, however, Abbott contacted Ritacca to reschedule a deposition. On August 29, 2000, Ritacca telephoned Abbott to agree to the rescheduling and, additionally, to place another request with Abbott for a supplemental disclosure. Again, this request went unanswered.

A more thorough review of Abbott’s document production, conducted during preparation for the rescheduled deposition, revealed another flaw: There were gaps in the sequence of the Bates numbers on the documents. Ritacca instantly telephoned Abbott and left a voice-mail message specifying the missing Bates numbers and asking for an explanation. At the deposition that afternoon, Abbott responded that it did not receive the message in time to locate the missing documents, but Abbott informed Ritacca that the gaps in the Bates numbers resulted from Abbott’s endeavor to remove duplicates from the document production. To verify this Ritacca asked Abbott to provide the duplicates. However, Abbott refused. Abbott also failed to provide Ritacca with any information regarding the August letter.

With a discovery cutoff date fast approaching (seven days away) and an apparent lack of cooperation from Abbott, Ritacca asked this Court to intervene. On October 3, 2000, this Court granted Ritacca’s Motion to Compel in part and denied it in part. Some issues remained, but the parties believed that they could resolve those differences amicably. Consequently, the motion was continued.

Over the next two months discussions between the parties proved worthwhile, at least to an extent. Abbott supplemented its earlier document production.3 But the documents that Abbott claimed were duplicates never made the trip. When asked why, Abbott allegedly either remained silent or simply refused to deliver.

At a status hearing on December 11, 2000, Abbott informed Ritacca and this Court that Ritacca would receive all of the requested documents later that day. Abbott gave no indication that any documents would be withheld. Therefore, no further status dates were set and Ritacca’s Motion to Compel was considered moot.

As Abbott promised, it delivered documents to Ritacca later that day. But to Ritacca’s surprise, the duplicate documents were not delivered. They appeared by reference in a List of Documents Not Produced that Abbott subsequently filed with the court. Instead of being listed as duplicates, Abbott listed the documents as privileged. As a result, Ritacca filed a Renewed Motion to Compel, and yet another appearance was scheduled before this Court.

Ritacca’s Renewed Motion to Compel contends, for purposes of this decision, that the documents listed in Abbott’s List of Documents Not Produced are not privileged. First, Ritacca argues that Abbott failed to assert the attorney-client privilege in a timely and proper manner. Second, Ritacca contends that, even if Abbott timely and properly asserted the privilege, this Court should find that Abbott waived the privilege by misrepresenting the documents as duplicates or by disclosing the subject matter of the purportedly privileged documents in other documents. Because this Court agrees that Abbott failed to assert the attorney-client privilege in a timely and proper manner, we grant Ritacca’s motion on that ground alone.

II. Discussion

Federal Rule of Civil Procedure 26(b)(1) limits the scope of discovery to “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” However, as with nearly all provi[335]*335sions in the Rules, this limitation as to privileged documents is not self-executing. See Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8, 12 (1st Cir.1991); Applied Sys., Inc. v. N. Ins. Co. of N.Y., No. 97 C 1565, 1997 WL 639235, at *2-3 (N.D.Ill.1997). Instead, parties asserting an objection to discovery on the ground of privilege must present that objection in a timely and proper manner as defined by the Rules. See Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir.1984).

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203 F.R.D. 332, 49 Fed. R. Serv. 3d 1052, 2001 U.S. Dist. LEXIS 4366, 2001 WL 363279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ritacca-v-abbott-laboratories-ilnd-2001.