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Perez v. Mueller

United States District Court, E.D. Wisconsin

November 22, 2016

THOMAS E. PEREZ, Plaintiff,
VERONICA MUELLER, et al., Defendants.


          WILLIAM E. DUFFIN, U.S. Magistrate Judge

         I. Procedural History

         United States Secretary of Labor Thomas E. Perez filed the present action alleging that the defendants violated provisions of the Employee Retirement Income Security Act of 1974 (ERISA) with respect to actions they undertook regarding an employee stock ownership plan (ESOP) sponsored by Omni Resources, Inc. The Secretary alleges that the ESOP imprudently purchased company stock for more than the stock's fair market value and without a proper valuation of the stock. The defendants involved in the motions that are the subject of this order are Veronica Mueller, Roger Mueller, and six trusts, who will be referred to collectively as the Mueller defendants.

         This matter was initially assigned to Magistrate Judge William E. Callahan. It was reassigned to the Honorable Rudolph T. Randa due to the lack of consent to proceed before a magistrate judge. Judge Randa presided over the case for the next 32 months. The case was reassigned to Judge Pamela Pepper after Judge Randa ceased presiding over cases due to what would prove to be a terminal illness.

         Since at least April of 2016 the parties have been asking the court to resolve discovery disputes regarding whether certain information sought by the Mueller defendants from the Department of Labor and its employees is privileged. Judge Randa granted the Mueller defendants' initial motion to compel. (ECF No. 95.) That led to the Secretary filing a “motion to clarify” (ECF No. 100), which motion Judge Randa granted (ECF No. 112). The Mueller defendants' promptly sought relief from that order. (ECF No. 113.)

         While the “motion to clarify” was pending, the Mueller defendants filed a motion to compel Department of Labor employee Charles Visconti to answer certain questions that he did not answer at his deposition on the basis of various privileges. (ECF No. 108.) The Mueller defendants also filed a second motion to compel discovery. (ECF No. 121.)

         On September 26, 2016, Judge Pepper (the case by then having been reassigned to her) denied the Mueller defendants' motion for relief from Judge Randa's July 27, 2016 order. (ECF No. 133.) Judge Pepper further referred the case to this court for resolution of the pending discovery disputes. (ECF Nos. 108, 121.)

         The Mueller defendants seek information and documents that the Secretary contends are privileged. The Secretary has provided a privilege log with respect to the documents sought by the Mueller defendants, . (ECF No. 101-1.) The Mueller defendants have provided the court with a list of objected-to deposition questions to which they seek answers from Visconti. (ECF No. 109 at 3-10.) Some of the deposition questions are duplicative of the document requests in that Visconti was asked to state what was redacted from certain documents.

         Although not required in every case, an in camera review of documents “is a highly appropriate and useful means of dealing with claims of governmental privilege.” Kerr v. United States Dist. Court for Northern Dist., 426 U.S. 394, 406 (1976). The court found that the most efficient and expeditious means for resolving the parties' dispute was for the court to conduct an in camera review of the allegedly privileged documents.

         The Secretary provided the court with copies of all documents identified as privileged on the most-recent privilege log. The defendants' motions to compel are now ready for resolution.

         II. Relevant Privileges

         The Secretary asserts that many documents are not subject to disclosure due various “privileges”: attorney-client, government investigative file, government deliberative process, work product, and common interest. Relying on the same privileges, counsel for the Secretary instructed the department's investigator, Charles Visconti, not to answer various questions at his deposition.

         A. Work Product Protection

         “[I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495, 511 (1947). To ensure that an attorney is able to develop his case in a manner most consistent with notions of justice, an attorney's work reflected “in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways, ” all of which have commonly come to be called “attorney work product, ” are privileged against disclosure to an adverse party. Id.; see also DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (“Work product protects ‘mental processes of the attorney.'”) (quoting United States v. Nobles, 422 U.S. 225, 238 (1975)).

The core of attorney work product consists of “the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed.R.Civ.P. 26(b)(3)(A)(ii). The opposing party “shouldn't be allowed to take a free ride on the other party's research, or get the inside dope on that party's strategy, or...invite the [trier of fact] to treat candid internal assessments of a party's legal vulnerabilities as admissions of guilt.” Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 768 (7th Cir. 2006); see Ronald J. Allen et al., “A Positive Theory of the Attorney-Client Privilege and the Work-Product Doctrine, ” 19 J. Legal Stud. 359, 384-86 (1990).

Menasha Corp. v. United States DOJ, 707 F.3d 846, 847 (7th Cir. 2013).

         Only the documents or protected communications are covered under the work product protection; the underlying facts are not protected. Patrick v. City of Chi., 111 F.Supp.3d 909, 915 (N.D. Ill. 2015) (citing Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981)). However, “disclosure of some documents does not necessarily destroy work-product protection for other documents of the same character.” Appleton Papers, Inc. v. EPA, 702 F.3d 1018, 1025 (7th Cir. 2012) (quoting 8 Wright & Miller, Federal Practice & Procedure, § 2024 and citing cases).

[T]he doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.

Nobles, 422 U.S. at 238-39.

         “[A] party may overcome a work product claim by showing ‘it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.'” Appleton Papers, 702 F.3d at 1022 (quoting Fed.R.Civ.P. 26(b)(3)(A)(ii)). When assessing whether a party has waived work product protection, a court assesses “whether the ‘specific assertions of privilege are reasonably consistent with the purposes for which' the privilege was created.” Appleton Papers, 702 F.3d at 1025 (quoting In re Sealed Case, 676 F.2d 793, 817, 219 U.S. App. D.C.195 (D.C. Cir. 1982)). Disclosure of certain sorts of work product is particularly discouraged. For example, disclosure of witness interviews and related documents is disfavored “because it tends to reveal the attorney's mental processes.” Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 622 (7th Cir. 2009) (quoting Upjohn, 449 U.S. at 398-99). The potential use of the material is also a relevant consideration. For example, the Court of Appeals for the Seventh Circuit has “been extremely reluctant to allow discovery of attorney work product simply as impeachment evidence.” Id. (citing Hauger v. Chi., Rock Island & Pac. R.R. Co., 216 F.2d 501, 508 (7th Cir. 1954)).

         B. ...

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