Gaura, Frank v. Anderson O'Brien, Bertz, Skrenes & Golla, LLP
3:20-cv-00259
| W.D. Wis. | Nov 25, 2020Background
- Pro se plaintiff Frank Gaura sued Anderson, O’Brien, Bertz, Skrenes & Golla, LLP under Title VII alleging national-origin discrimination, retaliation, and hostile-work-environment following his November 2019 termination. The discovery disputes resolved here concern production and confidentiality of communications, personnel/medical records, time entries, and certain documents on defendant’s privilege log.
- Plaintiff sought a protective order to avoid producing (1) communications with Anderson O’Brien employees (RFP 1) and (2) communications with attorney Sandra Zenor (RFP 2). He also moved to stay depositions and quash a subpoena for a former coworker.
- Defendant moved for a protective order to keep confidential plaintiff’s time-entry records, the firm’s liability insurance policy, and requested protection for personnel and medical records; it opposed plaintiff’s privilege challenges but agreed to in camera review of disputed items.
- Plaintiff moved to compel several items on defendant’s privilege log: internal attorney communications (involving in-house counsel Formella), communications with outside defense counsel and the insurer, and two management meeting minutes.
- The magistrate judge (Mag. J. Stephen L. Crocker) denied plaintiff’s protective order and related stay/quash; granted defendant’s protective order for specified categories; denied in part and reserved in part plaintiff’s motion to compel, ordering in camera review of nine disputed emails/documents; and set production deadlines (plaintiff to produce Zenor-related communications tied to his claims by Dec. 24, 2020).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether plaintiff should be protected from producing communications with former employees (RFP 1) | Production risks retaliation against coworkers and is therefore protected or should be reviewed in camera | Communications are relevant and plaintiff’s fear of retaliation is speculative; documents may identify witnesses and relevant responses | Denied — plaintiff must produce responsive communications; motion to stay/quash denied as moot |
| 2. Whether communications with Sandra Zenor (RFP 2) are privileged | Zenor is family attorney and friend; communications for legal advice are privileged or irrelevant and should be withheld | Zenor did not represent Gaura in this matter; communications are relevant to damages/mitigation and plaintiff failed to provide a privilege log | Denied — plaintiff must produce Zenor communications related to claims/damages/mitigation by deadline; privilege claim rejected for lack of specific document-by-document showing |
| 3. Whether defendant’s requested protective order should issue for time entries, insurance policy, personnel/medical records | Plaintiff opposed sealing and broad protections as improper; argued public access principles | Defendant seeks to protect client-confidential time entries, proprietary insurance policy data, and sensitive personnel/medical records under standard discovery protections | Granted in part — court entered protective order covering timekeeping records, liability policy, specified management minutes, and ordered confidentiality for personnel and medical/mental-health records (pretrial discovery) |
| 4. Whether documents on defendant’s privilege log must be produced (internal counsel emails; insurer/outside-counsel emails; meeting minutes) | Plaintiff contends privilege log is insufficient and asks for in camera review/production | Defendant asserts attorney-client and/or work-product protection and offered in camera review for disputed items; defends privilege assertions | Mixed — denied as to some outside-counsel/insurer emails and meeting minutes; reserved and ordered in camera review of six Formella emails, Dec. 12, 2019 Davy→Fuss email, and Jan. 30, 2020 Waits→Davy email; other logged documents upheld as privileged |
Key Cases Cited
- United States v. Keplinger, 776 F.2d 678 (7th Cir. 1985) (no attorney-client relationship inferred absent reasonable indication of belief of representation)
- United States v. Evans, 113 F.3d 1457 (7th Cir. 1997) (elements of attorney-client privilege and burden on party asserting it)
- United States v. White, 970 F.2d 328 (7th Cir. 1992) (privilege claims must be made and sustained on a document-by-document basis; no blanket claims)
- Sandra T.E. v. South Berwyn Sch. Dist. 100, 600 F.3d 612 (7th Cir. 2010) (attorney-client privilege protects communications beyond imminent litigation)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (corporate privilege covers communications within employee’s scope of duties made for legal advice)
- In re Specht, 622 F.3d 697 (7th Cir. 2010) (presumption of public access applies to filed materials, not unfiled discovery)
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (no public right of access to unfiled discovery)
- Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009) (reiterating lack of public right to unfiled discovery)
- Logan v. Commercial Union Ins. Co., 96 F.3d 971 (7th Cir. 1996) (work-product protects materials prepared because of prospect of litigation)
- Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109 (7th Cir. 1983) (distinguishes ordinary business materials from attorney work product)
- Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84 (N.D. Ill. 1992) (privilege must be established for each document)