United States District Court, E.D. Wisconsin
THOMAS E. PEREZ, Plaintiff,
VERONICA MUELLER, et al., Defendants.
DECISION AND ORDER ON THE DEFENDANTS' MOTIONS TO
WILLIAM E. DUFFIN, U.S. Magistrate Judge
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.
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.
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
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.)
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.)
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.
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.
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
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.
Work Product Protection
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).
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
[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.
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)).