281 F.R.D. 314
N.D. Ill.2012Background
- Plaintiffs move to compel production of documents withheld as privileged or work product.
- This case involves Target’s Autosub and Auto-Product Change programs that mailed Target VISA cards to existing Target Guest Card holders.
- Plaintiffs allege TILA, contract, and state-law claims related to these programs and resulting fees and terms.
- Muro v. Target Corp. provides substantial context; both cases share privilege/disclosure disputes over e-mails and distribution.
- Court conducted extensive in camera review of approximately 400 disputed documents and ordered production where privilege/work-product was not properly shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Has Target properly claimed and proven attorney-client privilege for disputed emails? | Acosta argues Target failed to show factual basis for privilege for many emails. | Target contends logs and declarations suffice to establish privilege. | Partially granted; many documents failed to meet burden of showing confidentiality and scope. |
| Are certain documents protected by work-product despite privilege issues? | Acosta asserts work-product protection applies where prepared in anticipation of litigation. | Target asserts work-product shield for the same documents. | Partially upheld; some materials not protected; others lacking proper showing. |
| Did broad dissemination to non-listed recipients defeat privilege? | Disclosures beyond listed recipients undermine confidentiality required for privilege. | Target contends distribution within project teams remains within privilege scope. | Court found dissemination insufficiently demonstrated as confidential; production ordered for many documents. |
| Should plaintiffs recover expenses for improper withholding? | Target improperly withheld documents, increasing plaintiffs’ costs. | Target disputes the scope of recoverable expenses. | Yes; two-thirds of plaintiffs’ expenses ordered to be paid by Target; remediation ordered. |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (corporate privilege scope in employees providing legal advice)
- U.S. v. Evans, 113 F.3d 1457 (7th Cir. 1997) (elements of attorney-client privilege for corporations)
- In re Air Crash Disaster at Sioux City, Iowa, 133 F.R.D. 515 (N.D. Ill. 1990) (distribution lists must identify all recipients to preserve privilege)
- Muro v. Target Corp., 243 F.R.D. 301 (N.D. Ill. 2007) (court found insufficient factual basis to sustain privilege for many documents)
- Muro v. Target Corp., 250 F.R.D. 350 (N.D. Ill. 2007) (district court decisions on privilege/discovery disputes; law of the case not applicable)