Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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Briefs and Other Related Documents Sharonda B. v. HerrickN.D.Ill.,1998.Only the Westlaw citation is currently available. United States District Court, N.D. Illinois. SHARONDA B., Maurice B., Jr., and Ashley G., minors, by their next friend and Guardian ad Litem, Patrick T. Murphy, the Cook County Public Guardian, and Patrick T. Murphy, as Administrator of the Estate of Coreese Goldman, deceased, Plaintiffs, v. Todd HERRICK, Defendant. No. 97 C 1225. Aug. 27, 1998. MEMORANDUM OPINION AND ORDER ASPEN, Chief J. *1 On February 27, 1998, defendant Todd Herrick filed a motion to compel the production of seven documents in the possession of the plaintiffs. The plaintiffs had refused to produce these documents on the grounds that they were protected by the attorneyclient and/or work product privileges. We referred the matter to Magistrate Judge Denlow, who denied the motion. Herrick has filed objections to Judge Denlow's order. See Fed. R. Civ. P. 72(a). For the reasons set forth below, we overrule Herrick's objections in part and sustain them in part. I. Background The plaintiffs in this case are four children who became wards of the State of Illinois when neglect petitions were filed on their behalf in Juvenile Court. Pursuant to a standing order, the Juvenile Court appointed Patrick T. Murphy, Cook County Public Guardian ("Public Guardian"), as the children's attorney and guardian ad litem. See Pl.s' Resp. Br. Ex. D. In addition to representing the plaintiffs in various proceedings before the Juvenile Court, the Public Guardian has filed suit on behalf of the plaintiffs against Todd Herrick, the DCFS child welfare worker responsible for their placement with a foster family. The plaintiffs allege that Herrick caused them to be placed in the home of a foster parent who murdered Coreese Goldman and abused Sharonda, Maurice, and Ashley. The plaintiffs

contend that Herrick breached his duty to ensure their safety by being deliberately indifferent to the dangers present in the foster home he selected for them. In late 1997, the defendant served his written discovery requests on the plaintiffs. In response, the plaintiffs provided defendant's counsel with a privilege log indicating that they were withholding seven documents from disclosure based on the attorney-client and work-product privileges. These documents consist of: (1) notes made by child interviewers employed by the Public Guardian during interviews with the plaintiffs (documents 1 and 3); (2) notes by a Public Guardian attorney from his observation of Ashley and conversation with a nurse (document 2); and (3) notes from several conversations between Public Guardian attorneys and DCFS case workers regarding the approval of the foster home and the placement of the children within that home (documents 4-7). Herrick's motion to compel challenged the plaintiffs' assertion of privilege with respect to these documents, arguing that the communications in question were made to the Public Guardian (or his agents) not in his capacity as attorney for the children, but in his capacity as their guardian ad litem. Judge Denlow rejected this argument, reasoning that "[t]he Public Guardian, although acting as a guardian ad litem, is also acting as an attorney. The guardian ad litem role does not destroy the attorney role. The Public Guardian is acting as guardian ad litem pursuant to a standing order which appears designed to minimize expense while recognizing that the primary role being performed is that of an attorney." Mem. Op. at 9. We may disturb Judge Denlow's conclusion only if we find that it is "clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a). II. Discussion A. The Dual Role of the Public Guardian *2 The difficult issues presented in this motion all relate to the fact that the Public Guardian is performing two functions with respect to the plaintiffs. The first is as their attorney: the Illinois Juvenile Court Act requires that every minor

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 1998 WL 547306 (N.D.Ill.) (Cite as: Not Reported in F.Supp.2d) involved in proceedings before the Juvenile Court be represented by counsel. See 705 ILCS 405/1-5(1). The second is as their guardian ad litem: in cases involving allegations of physical abuse, the Juvenile Court must appoint a guardian ad litem. See 705 ILCS 405/2-17. The duties imposed by these two roles are similar but not identical. Like all other attorneys, when the Public Guardian is acting as such he must seek to achieve the goals of his client. See Illinois Rules of Professional Conduct Rule 1.2(a) ("A lawyer shall abide by a client's decisions concerning the objectives of representation...."). As guardian ad litem, however, the Public Guardian must "represent the best interests of the minor," 705 ILCS 405/2-17(1), even if doing so conflicts with the child's own wishes.FN1 FN1. The standing order of the Cook County Juvenile Court providing that the Cook County Public Guardian will play both of these roles is thus open to the criticism that it can create a conflict of interest for the Public Guardian. See Diane Geraghty, Ethical Issues in the Legal Representation of Children in Illinois: Roles, Rules and Reforms, 29 Loy. U. Chi.CHI. L.J. 289, 29192 (1998). No one has suggested that such a conflict is present in this case, however. B. The Attorney-Client Privilege The purpose of the attorney-client privilege is "to encourage `full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice." ' Swidler & Berlin v. United States, 524 U.S. 399, ----, 118 S.Ct. 2081, 2084, 141 L.Ed.2d 379 (1998) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). The privilege recognizes that "sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client." Upjohn, 449 U.S. at 389. Clients will not provide their attorneys will full information unless their communications are "free from the consequences or the apprehension of disclosure." Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 32 L.Ed. 488 (1888). The Seventh Circuit has described the privilege as follows: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his

instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. United States v. Evans, 113 F.3d 1457, 1461 (7th Cir.1997) (quoting 8 John Henry Wigmore, Evidence in Trials at Common Law § 2292 (John T. McNaughton rev.1961)). "Because the privilege is in derogation of the search for the truth, it is construed narrowly." Id. The plaintiffs claim that the attorney-client privilege applies to their conversations with the child interviewers employed by the Public Guardian, and have accordingly refused to disclose the notes the interviewers took during those conversations (documents 1 and 3). Herrick presents two arguments against this claim, both of which focus on the second prong of Wigmore's test-whether the communications were made to "a professional legal adviser in his capacity as such." 1. The Public Guardian's Two Hats *3 Herrick's first argument is that the plaintiffs' conversations with child interviewers employed by the Public Guardian are not privileged because the Public Guardian initiated these conversations pursuant to his function as guardian ad litem for the children, not pursuant to his role as their attorney. See 705 ILCS 405/2-17(8) (requiring the guardian ad litem to have "in-person contact with the minor" prior to any adjudicatory hearing). Judge Denlow acknowledged that the Public Guardian was acting as guardian ad litem when he authorized interviews of the children, but correctly observed that in so doing the Public Guardian was "also acting as an attorney." Mem. Op. at 9. Even if the Public Guardian had only been appointed to serve as attorney for the children, he would still have had to confer with them to learn the facts of the case and to find out how they wanted to proceed. Judge Denlow then concluded that the interviews were privileged communications because the "primary role being performed is that of an attorney." Id. When a lawyer wears two hats with respect to a client, determining which role he or she was playing with respect to a given communication "is essential if the privilege is to be limited to those disclosures related to legal advice." In re Feldberg, 862 F.2d 622, 626 (7th Cir.1988). If a given communication is arguably relevant to both roles that the attorney is playing, the attorney-client privilege applies if the

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 1998 WL 547306 (N.D.Ill.) (Cite as: Not Reported in F.Supp.2d) primary purpose of the communication was to facilitate the rendering of legal assistance. See Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577, 582 (7th Cir.1981); Paul R. Rice, Attorney-Client Privilege in The United States, § 7.3 (1993) ("[I]f the nonlegal aspects of the consultation are integral to the legal assistance given and the legal assistance is the primary purpose of the consultation, both the client's communications and the lawyer's advice ... will be afforded the protection of the privilege."). "A client does not lose the privilege merely because his attorney serves a dual role." In re Grand Jury Proceeding, 68 F.3d 193, 196 (7th Cir.1995). Judge Denlow examined the allegedly privileged interview notes in camera and heard argument from the parties, but unfortunately his opinion does not contain an express factual finding as to the primary purpose of the communications between the interviewers and the plaintiffs.FN2 Nevertheless, there is ample evidence in the record to support his implicit conclusion that the primary purpose of the communications was to assist the Public Guardian in performing his duties as attorney. Most importantly, both of the child interviewers involved in this case describe their task as "interview[ing] child clients of the Public Guardian's Office at the direction of attorneys in that office in order to assist the attorneys in preparing our client's cases in Juvenile Court." Pl.s' Resp. Mem. Ex. G ¶ 5 (declaration of Kathy Collins); id. Ex. H ¶ 5 (declaration of Myron Cislo). During these conversations the interviewers would "discuss the children's juvenile court cases, explain what was happening in court and gather information so that the attorneys would be able to make informed decisions concerning the children's legal rights at all stages of the Juvenile Court proceedings." Id. Ex. G. ¶ 7; see also id. Ex. H ¶ 8. The interviewers explained to the plaintiffs that because of their attorney-client relationship, whatever statements the children made would be kept confidential. See id. Ex. G ¶ 8.FN3 FN2. The closest the opinion comes to addressing this question is when it states that under the Juvenile Court's standing order "the primary role being performed [by the Public Guardian] is that of an attorney." Mem. Op. at 9. Herrick understandably attacks this statement for "appear[ing] to suggest that because the guardian as litem is also an attorney all communications are protected regardless of which role the information was received in." Def.'s

Objections at 2. As indicated in Feldberg, supra, when an attorney is acting in a dual capacity we cannot simply assume that the attorney role is primary for all communications: we must examine each communication to determine if it was primarily intended to facilitate the provision of legal services. FN3. Obviously the mere fact that the interviewers told the plaintiffs that their discussions would be privileged does not make them so. But the fact that the interviewers mentioned the attorney-client privilege in these discussion corroborates their claim that they were thinking of themselves as providing legal assistance rather than guardianship assistance, and this supports the broader conclusion that the primary purpose of the interviews was to facilitate the provision of legal services. *4 Herrick has provided no contradictory evidence showing that the Public Guardian's role as guardian ad litem was the primary purpose of these conversations. Rather, when Judge Denlow offered the assistant Attorney General representing Herrick an opportunity to explain what aspects of these conversations led her to believe that they were in furtherance of guardian ad litem responsibilities rather than attorney responsibilities, she could point to none: THE COURT: What is it about this situation that makes you think that they were acting in some role other than as counsel? MS. WOOD: Well, because they were appointed as guardian ad litem. THE COURT: But that happens in every case, I'm being told. ... THE COURT: So, tell me what distinct conduct have you observed as it relates to any of these parties that represents ad litem conduct as opposed to attorney conduct. MS. WOOD: ... [It] has not been made clear what role the guardian ad litem played with regard to these plaintiffs. There was-there's nothing included in their response brief with regard to what they specifically did for these plaintiffs in their role as guardian ad litem. Tr. at 19-20. Thus, we are convinced that the primary purpose of the child interviewers' conversations with the plaintiffs was to assist the Public Guardian in providing legal services. Any need to fulfill guardian

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 1998 WL 547306 (N.D.Ill.) (Cite as: Not Reported in F.Supp.2d) ad litem responsibilities was secondary. Judge Denlow was therefore correct to conclude that the attorney-client privilege could apply to documents 1 and 3. 2. Child Interviewers as Attorney Agents Herrick's second argument is that the attorney-client privilege does not apply to the plaintiffs' conversations with child interviewers because the interviewers are not attorneys. Judge Denlow dispensed with this argument quickly and correctly by observing that " `the privilege ... include[s] all the persons who act as the attorney's agents." ' Mem. Op. at 9 (quoting 8 Wigmore, supra, § 2301); see also 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 503.12[3][a] (Joseph M. McLaughlin, ed., 2d ed. 1997) ("A representative of a lawyer is someone employed to assist the lawyer in the rendition of professional legal services. Confidential communications to such a person are privileged."). The child interviewers employed by the Public Guardian assist in rendering legal services, and because it is undisputed in this case that their conversations with the plaintiffs were confidential, the privilege attaches to those conversations. C. The Work Product Privilege The work product doctrine provides: [A] party may obtain discovery of documents ... prepared in anticipation of litigation or for trial by another party or for that other party's representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering disclosure of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. *5 Fed.R.Civ.P. 26(b)(3). The plaintiffs contend that since all seven of the documents in question consist of notes prepared by Public Guardian attorneys or their representatives, all are protected by the qualified privilege created by Rule 26(b)(3). Herrick argues that these documents were not prepared in anticipation of litigation, and that in any event he has a substantial need for them and will suffer undue

hardship in obtaining the information therein by other means. We consider these arguments in turn. 1. Anticipation of Litigation Herrick's only challenge to the plaintiffs' claim that the seven documents were prepared in anticipation of litigation is to repeat his previous argument that the notes were taken pursuant to the Public Guardian's duties as guardian ad litem rather than pursuant to his duties as attorney. See Def.'s Objections at 9-10.FN4 Similar to the attorney-client privilege analysis, we must determine whether " `the primary motivating purpose behind the creation of [each] document ... [was] to aid in possible future litigation." ' Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir.1983) (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C.1982)); see also Dawson v. New York Life Ins. Co., 901 F.Supp. 1362, 1368 (N.D.Ill.1995). As set forth above, we think it is clear that documents 1 and 3 were prepared primarily in the Public Guardian's capacity as attorney and to aid in future litigation, and it is clearer still with respect to documents 5 through 7. According to the privilege log, these latter three documents are notes of conversations between Public Guardian attorneys and DCFS caseworkers conducted just after Coreese was murdered regarding the decision to place the plaintiffs in the home in which they were abused. The information in these documents would be of little use to the Public Guardian in his capacity as guardian ad litem: it has no bearing on the future best interests of the plaintiffs. The only value of this information would be in determining whether DCFS or its employees might be liable for the harm that befell the plaintiffs, so it is obvious that in conducting these interviews the Public Guardian was acting primarily as an attorney. FN4. In his original motion, Herrick also argued that Juvenile Court proceedings are not "litigation" for purposes of the anticipation of litigation element of the work product doctrine. See Def.'s Mot. at 7-8. Judge Denlow persuasively rejected this argument in his opinion, see Mem. Op. at 12, and Herrick has chosen not to renew it in his objections to that opinion. We are unable to reach the same conclusion with respect to document 2 and the first part of document 4.FN5 Document 2 is an "Infant Observation Form

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 1998 WL 547306 (N.D.Ill.) (Cite as: Not Reported in F.Supp.2d) containing notes from an August 8, 1994, observation by Assistant Public Guardian Denis Guest of Ashley at Michael Reese Hospital and an August 8, 1994, conversation between Guest and a nurse." Mem. Op. at 3. From this limited description, document 2 seems more likely to have been created pursuant to the Public Guardian's duties as guardian ad litem than pursuant to his duties as attorney. Observing Ashley in the hospital and discussing her medical condition with a nurse would have been essential to deciding what future steps would be in her best interests. The information obtained in this way might also prove useful in future legal proceedings, but it does not seem essential. FN5. The second part of document 4 consists of notes made by Deputy Public Guardian Kim King after Coreese's death regarding the decision to place the children in the abusive home. These notes are identical to the notes in documents 5 through 7, so the same reasoning applies to them. *6 Similar reasoning applies to the first part of document 4. This document consists of "notes made by Guest relating to his conversation with Defendant on October 25, 1994, regarding the placement and condition of [the plaintiffs]." Id. (emphasis added). While monitoring the condition of wards is an essential duty of a guardian ad litem, it is not clear that the Public Guardian in his capacity as attorney must do so. In sum, despite having had ample opportunity to show that these documents were prepared primarily to assist him in his role as attorney rather than as guardian ad litem, the Public Guardian has not done so.FN6 Since the burden is on the party claiming the work product privilege to prove that the documents were prepared in anticipation of litigation, see Binks, 709 F.2d at 1119, we sustain Herrick's objections to Judge Denlow's report with respect to document 2 and the first part of document 4.FN7 Herrick's motion to compel production is granted with respect to those documents. The Public Guardian shall produce them forthwith. FN6. It may now be impossible for the Public Guardian to establish the purpose the conversations memorialized in documents 2 and 4 since Denis Guest does not even remember participating in them. See Guest Dep. at 29-30. It strikes us as highly unlikely that an examination of these documents in

camera will shed any light on their purpose, but if the plaintiffs believe that such an examination alone would enable them to carry their burden, they may submit the documents to us as part of a motion to reconsider. FN7. We are mindful of the general rule that we may depart from factual findings in a magistrate's order only if we find them "clearly erroneous." Fed.R.Civ.P. 72(a). This standard of review is inapplicable, however, on factual questions about which the magistrate's opinion is silent. Judge Denlow's opinion contains no factual finding regarding the primary purpose of documents 2 or 4, so we are free to draw our own conclusions based on the evidence in the record. 2. Substantial Need and Undue Hardship Herrick's second argument is that even if the documents in question were prepared in anticipation of litigation he can overcome the qualified privilege by showing substantial need and undue hardship. We disagree for two reasons. First, Herrick has waived this argument by failing to raise it in the proceedings before Judge Denlow. See Mem. Op. at 13 ("Defendant has not attempted to make the required showing of a substantial need or an undue hardship...."). Second, even if we assume arguendo that Herrick could prove substantial need and undue hardship, this will not suffice to overcome the work product privilege given the nature of the documents at issue here. As indicated by the text of Rule 26, even after a party has made a showing of substantial need the court must still "protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party." Fed. R. Civ. P. 26(b)(3); see also 6 James Wm. Moore et al., Moore's Federal Practice § 26.70[5][b] (3d ed.1997). The notes in this case are classic opinion work product, and the Supreme Court has observed that "[f]orcing an attorney to disclose notes and memoranda of witnesses' oral statements is particularly disfavored because it tends to reveal the attorney's mental processes." Upjohn Co. v. United States, 449 U.S. 383, 399, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). When a party seeks discovery of opinion work product as opposed to factual work product, the mere establishment of substantial need and undue hardship will not suffice: the moving party must make a "far stronger showing of necessity and unavailability." Id. at 401. Although the exact

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 1998 WL 547306 (N.D.Ill.) (Cite as: Not Reported in F.Supp.2d) parameters of this extraordinary showing are not entirely clear, see 6 Moore et al., supra, § 26.70[5][e], we are certain that it has not been met by Herrick in this case: in no sense are the seven documents in question "necessary" to enable him to present a defense. III. Conclusion *7 For the foregoing reasons, Herrick's objections to Magistrate Judge Denlow's opinion are overruled with respect to documents 1,3,5,6, and 7, as well as the second part of document 4. Those documents are privileged, so Herrick's motion to compel is denied. Herrick's objections are sustained with respect to document 2 and the first part of document 4. The plaintiffs shall provide Herrick with copies of those documents forthwith. It is so ordered. N.D.Ill.,1998. Sharonda B. v. Herrick Not Reported in F.Supp.2d, 1998 WL 547306 (N.D.Ill.) Briefs and Other Related Documents (Back to top) · 1:97cv01225 (Docket) (Feb. 21, 1997) END OF DOCUMENT

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