McCullough v. Fraternal Order of Police
304 F.R.D. 232
N.D. Ill.2014Background
- Mary Pat McCullough was employed as secretary to the FOP Chicago Lodge 7 president from June 2002 until her termination on April 5, 2011.
- McCullough and coworker Marie Marrero alleged sexual harassment and a hostile environment at the FOP; Marrero was later fired in September 2011 amid allegations of fabricating evidence.
- Caporusso represented Marrero and McCullough in EEOC charges filed in April 2011; Caporusso later ceased representing McCullough for a period beginning mid-2012.
- McCullough, pro se, filed a federal case against the FOP in November 2012; discovery sought communications between McCullough and Marrero, including emails, to test privilege.
- McCullough claimed the emails were protected by the common interest doctrine due to joint representation; the court conducted in camera review and determined privilege issues depended on the period of representation and the joint-lawyer doctrine.
- The court ultimately held that communications after June 30, 2012 were not privileged; the court ordered production of several emails and superseded prior orders that conflicted with this ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the emails between McCullough and Marrero are privileged | McCullough and Marrero shared a joint legal representation, invoking common representation. | There was no continuous joint representation; privilege depended on the dates of representation and sharing with Caporusso. | Partially granted; pre-July 1, 2012 emails could be privileged under joint lawyer doctrine, but post-June 30, 2012 emails are not. |
| Whether the joint lawyer doctrine applies to the emails | The two clients were jointly represented by Caporusso; emails should remain confidential. | Joint representation requires a nearly identical legal interest and ongoing attorney direction; not satisfied here. | Not fully applicable; the five-month window and lack of clear ongoing representation undermined applicability. |
| Whether the common interest doctrine applies to the emails | Two clients with a common goal of pursuing claims created a common legal interest. | Common interest doctrine requires separate counsel and a joint defense effort; not shown here. | Not applicable; the doctrine does not apply when the same lawyer represents both clients without clear joint defense coordination. |
| What dates define the period of joint representation and its impact on privilege | Caporusso represented McCullough and Marrero contemporaneously for a period. | There is insufficient proof of a continuous joint representation after mid-2012; many months ambiguity favors disclosure. | McCullough failed to prove continuous joint representation after June 30, 2012; post-date emails not privileged. |
Key Cases Cited
- Jaffee v. Redmond, 518 U.S. 1 (U.S. 1996) (establishes broad attorney-client privilege for confidential communications)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (confirms privilege extends to corporate clients and confidential communications)
- Rehling v. City of Chicago, 207 F.3d 1009 (7th Cir. 2000) (clarifies protection when lawyer communications rely on client information)
- United States v. Nobles, 422 U.S. 225 (U.S. 1975) (discusses general waiver and third-party disclosures)
- In re Teleglobe Communications Corp., 493 F.3d 345 (3d Cir. 2007) (distinguishes joint lawyer and common interest concepts; scope under privilege)
- BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007) (describes common interest doctrine limitations and sharing requirements)
- In re Grand Jury Subpoenas, 902 F.2d 244 (4th Cir. 1990) (discusses limits of common interest and joint defense notions)
- Gulf Islands Leasing, Inc. v. Bombardier Capital, Inc., 215 F.R.D. 466 (S.D.N.Y. 2003) (example of limitations on privilege sharing in communications)