338 F. Supp. 3d 851
N.D. Ill.2018Background
- John Gerba sued the National Hellenic Museum after termination; discovery later focused on emails the Museum withheld under attorney-client privilege related to a purported stalking incident and Gerba's separation/litigation matters.
- Gerba moved to compel production of 23 emails identified in the Museum's privilege log but developed arguments only for a subset; the court noted some waiver but reviewed entries anyway because the Museum bears the burden to establish privilege.
- The contested emails involve communications among the Museum president, HR director, a board member who is also an attorney (and his firm), and outside Calamos Family Partners personnel; topics include the alleged stalking, a separation agreement, security measures, and a litigation hold.
- The Museum asserted attorney-client privilege (and, for some communications, a joint-defense/common-interest theory); Gerba argued the log and affidavits did not show legal purpose or that non-lawyers were acting in a legal-advice capacity.
- The court evaluated whether communications were made for the purpose of obtaining legal advice and whether participants were acting in attorney roles, distinguishing legal-advice communications (privileged) from financial/business communications or security logistics (not privileged).
- Ruling: the Court denied the motion in part and granted it in part, ordering production of emails 20, 21, 36, 37, 38, 39, and 40, while finding other listed emails privileged and denying Gerba’s motion to extend a reply deadline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether listed emails are protected by attorney-client privilege | Gerba: privilege log and affidavit insufficient; many communications involved non-lawyers or financial actors, so no privilege | Museum: emails concern legal advice re: stalking, separation, litigation hold; board member/attorney acted as legal advisor so communications are privileged | Court: Privilege applies to many stalking- and separation-related emails where legal advice sought; but emails involving Calamos (financial) or security logistics lacking evidence of legal purpose must be produced (emails 20,21,36–40 produced) |
| Whether communications among non-attorneys (or among client representatives) are privileged | Gerba: presence of non-attorneys suggests business, not legal, communications; privilege not automatic | Museum: communications among client representatives or forwarding to counsel can be privileged if for purpose of eliciting legal advice | Court: Such communications can be privileged when made to facilitate legal advice; applied to several emails about stalking/separation but not to emails showing apparent financial/business purpose |
| Whether Museum’s affidavits and privilege log sufficiently establish privilege for communications with Calamos Family Partners | Gerba: affidavit/log fail to show Calamos personnel acted as lawyers; internet sources show Calamos is financial—business advice not privileged | Museum: asserted Calamos provided legal/financial personnel and were involved in reviewing separation agreement | Court: Museum’s affidavit and log insufficient to show legal role; communications with Calamos are not shown to be privileged and must be produced (emails 20, 21) |
| Applicability of joint-defense/common-interest doctrine | Gerba: doctrine not applicable absent showing underlying communications are privileged | Museum: asserted common interest protects sharing between parties | Court: Doctrine does not apply where privilege not first established; because privilege not shown for certain emails, common-interest claim fails for those emails |
Key Cases Cited
- United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011) (describing purpose and scope of attorney-client privilege)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (privilege encourages full and frank communications between lawyers and clients)
- United States v. BDO Seidman, 337 F.3d 802 (7th Cir. 2003) (standards for organizational privilege and joint-defense/common-interest doctrine)
- Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612 (7th Cir. 2010) (adhere to role-based inquiry whether attorney acted as legal advisor)
- Matter of Grand Jury Proceedings, 68 F.3d 193 (7th Cir. 1995) (attorney’s dual roles do not automatically destroy privilege)
- Burden-Meeks v. Welch, 319 F.3d 897 (7th Cir. 2003) (business/financial advice is not covered by attorney-client privilege)