Lee v. Chicago Youth Centers, 69 F. Supp. 3d 885

This discovery dispute follows a prior ruling holding most withheld materials were not privileged; the court did not earlier decide waiver or inadvertent-production claims.
Judge Lefkow sustained privilege objections only as to two items: Exhibit 7 (an email not produced) and the first two sentences of Exhibit 16 (an email response to Exhibit 7, which was produced). She remanded the waiver question to the magistrate judge.
Plaintiffs argued defendants waived any privilege by taking inconsistent positions in discovery and by producing ESI that could not reasonably have been inadvertent.
Defendants claimed inadvertent production and that they intended to maintain privilege; their written support was a brief, conclusory paragraph summarizing vendor searches and counsel’s intent.
The court found defendants offered no evidentiary support (no cases, declarations, or factual detail) and relied on lawyer argument alone; it also criticized defendants for delegating review to a vendor after notice of a problem.
The magistrate judge concluded defendants waived any claim of inadvertent production as to Exhibits 7 and 16 and ordered immediate production.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendants waived attorney-client privilege for Exhibits 7 and 16	Defendants took inconsistent positions and produced ESI such that privilege was waived	Privilege remains; communications with Morgan were intended to be confidential	Waiver found as to Exhibits 7 and 16; produce documents
Whether production of Exhibit 16 was inadvertent	Production of ESI could not reasonably be inadvertent given facts and inconsistent privilege logs	Production was inadvertent; vendor search failed to locate some documents	Inadvertent-production claim rejected for lack of factual support; waived
Whether defendants took reasonable steps to prevent disclosure	Defendants delegated review to vendor and failed to properly identify privileged items; inconsistent logs show failure	Defendants assert they took reasonable steps (vendor searches, timely notice)	Court found steps insufficient and unsupported; delegation did not excuse failure
Whether unsupported attorney assertions in briefs suffice as evidence	Plaintiff says conclusory counsel statements are not evidence and therefore insufficient	Defendants relied on counsel assertions in brief and letter	Court agrees unsupported lawyer assertions are not evidence; argument waived

INS v. Phinpathya, 464 U.S. 183 (1983) (unsupported counsel assertions are not evidence)
Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101 (7th Cir. 1984) (litigants must support factual assertions; unsupported counsel statements carry no weight)
United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991) (longstanding principle that perfunctory or undeveloped arguments are waived)
United States v. Beavers, 756 F.3d 1044 (7th Cir. 2014) (undeveloped arguments may be deemed waived)
Massuda v. Panda Express, Inc., 759 F.3d 779 (7th Cir. 2014) (courts may deem perfunctory briefing waived)
Puffer v. Allstate Ins. Co., 675 F.3d 709 (7th Cir. 2012) (insufficiently developed legal arguments are forfeited)
Williams v. Dieball, 724 F.3d 957 (7th Cir. 2013) (judges are not substitutes for counsel; parties must adequately brief issues)
Clifford v. Crop Production Servs., Inc., 627 F.3d 268 (7th Cir. 2010) (requiring meaningful support for contested assertions)
IFC Credit Corp. v. Aliano Bros., 437 F.3d 606 (7th Cir. 2006) (unsupported factual assertions in briefs are inadequate)
Feingold v. AdminaStar Fed., Inc., 324 F.3d 492 (7th Cir. 2003) (cautioning against reliance on counsel argument in place of evidence)