In Wier v. United Airlines, Inc., No. 19 CV 7000 (N.D. Ill. Apr. 16, 2021), Illinois Magistrate Judge Heather K. McShain, rejecting the idea that “in camera review should be granted as a default”, rejected the plaintiff’s motion to compel the production of thirty-five documents listed on the defendant’s privilege log, or alternatively, for an in camera review.  She also rejected the plaintiff’s contention that the defendant had waived privilege on a privileged document that was inadvertently produced.

Case Background

In this case involving claims of failure to accommodate, discrimination, and retaliation under the Americans with Disabilities Act (“ADA”), among other things, by a former employee of the defendant, this dispute concerned the sufficiency of United’s privilege log. 

The defendant produced its initial Privilege Log on March 24, 2020 and plaintiff’s counsel sent a letter on August 25, addressing alleged deficiencies in the log.  Counsel met and conferred over the phone three times, which led to the defendant tendering a Revised Privilege Log on October 19. The next day, the plaintiff’s counsel sent another letter regarding purported deficiencies with that log, counsel again met and conferred over the phone on October 29, and plaintiff’s counsel sent a follow-up letter that same day.  On November 6, 2020, plaintiff’s counsel demanded the defendant produce what she believed to be erroneously withheld documents and made multiple requests to discuss the matter over the phone between mid-November and early December.

The defendant produced a Second Amended Privilege Log on December 18 and the parties met and conferred via telephone on December 22, and Plaintiff’s counsel sent a letter regarding that conversation later that day, which notified the defendant that the plaintiff intended to rely on a “subject-matter waiver argument” as to UNITED000177—a document included in United’s document production—in a forthcoming motion to compel.  The following day, defense counsel emailed Plaintiff’s counsel a letter, stating that, based on Plaintiff’s counsel’s letter, the defendant was now aware that an email communication that should have been withheld based on the attorney-client privilege was inadvertently included in United’s initial production.

On January 4, 2021, the plaintiff filed the instant motion to compel, requesting that the Court compel the production of thirty-five documents on the defendant’s’s fifty-entry privilege log, or alternatively conduct an in camera review, arguing that the documents were non-privileged communications that either did not include a lawyer or which merely included in-house counsel as one of several copyees.  The plaintiff also claimed that in camera review is “especially appropriate” where, as here, the volume of documents is “nominal”.

Judge’s Ruling

While acknowledging that “the emails solely between United’s non-lawyer employees require a more detailed description”, Judge McShain stated “The Court finds that United has carried its burden and appropriately designated as privileged the communications on which in-house counsel is copied or is one of multiple recipients. These emails indicate that the non-attorney employees were seeking legal advice regarding ‘suspicions of FMLA abuse,’ ‘approval of absences in light of suspicious documentation,’ ‘Wier’s absences,’ and ‘absences in light of suspicious paperwork.’  These are ‘terms of art well-known to the parties in this litigation, as they go to the heart of some of the key disputes in the litigation.’”  Judge McShain also noted that “Wier’s challenge to the privileged nature of these emails appears to be based on mere speculation. At the motion hearing, Wier’s counsel stated that employers will often copy their attorneys as a way to support a claim of privilege and ‘that’s probably what’s going on here.’”

With regard to claims that there is no evidence that the emails sent by in-house counsel were “responding to a prior confidential communication seeking legal advice” because of the time delay in responding, Judge McShain stated: “The Court declines to make this leap or read a temporal limitation into the elements for establishing a privilege claim.”  Judge McShain also rejected the plaintiff’s claim that the defendant’s employees were seeking business, not legal advice from in-house counsel, stating: “There is no evidence in the record before the Court that in-house counsel Nash wears two hats”.

While noting that “the number of documents United reviewed (and ultimately produced) falls ‘toward the modest end of the spectrum in modern discovery practice”, Judge McShain accepted the defendant’s explanation of a shift to remote work causing a change in workflow that led to the inadvertent disclosure and ruled that privilege had not been waived.  As for the request for in camera review, Judge McShain stated in rejecting that request: “This Court is loath to establish what would amount to an arbitrary numerical floor triggering in camera review. Whether 10 or 10,000 documents are at issue, the volume should not dictate a “default” in camera status.”

So, what do you think?  Should the court have granted the motion for in camera review, given the small number of documents?  Please share any comments you might have or if you’d like to know more about a particular topic.

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