In Crabtree v. Experian Information Sols., No. 1:16-cv-10706, (N.D. Ill. Oct. 20, 2017), the Court was asked to determine a dispute about whether a party’s internal communications were privileged, pursuant to the motion to compel filed by Plaintiff Quentin Crabtree (“Plaintiff”) against Defendant Experian Information Solutions, Inc. (“Defendant”).
The discovery dispute arose from an internal investigation conducted by Defendant at the request of in-house counsel between September and October 17, 2011, concerning one of its users, Western Sierra Acceptance Corporation (“WSAC”). As part of the investigation, Defendant’s employees gathered information internally from its various departments to aid its counsel in providing legal advice about Experian’s business relationship with WSAC. Experian ultimately decided to end its association with WSAC. Plaintiff filed a motion to compel requesting that the Court compel the production of certain documents concerning the investigation, or alternatively conduct an in camera review, and order Defendant to pay Plaintiff’s reasonable expenses for bringing the motion. Defendant Experian had listed these documents on its privilege log in its initial discovery responses.
As a threshold issue, the Court considered the premise that the party claiming privilege (in this case, Defendant Experian) had the burden of demonstrating the existence of the privilege. Plaintiff argued that Defendant’s assertion of attorney-client privilege was too broad. Application of the privilege turns on whether the communications rests on confidential information obtained from the client or would reveal the substance of a confidential communication by the client. Although direct lawyer involvement is not required for the privilege to attach, a lawyer must have some relationship to the communication such that the communication between the non-lawyer employee would reveal, directly or indirectly, the substance of a confidential attorney-client communication.
The Court determined that Defendant appropriately designated as privileged the communications between its non-lawyer employees. The descriptions on the log for each of these entries made clear that the challenged documents related to the investigation launched and conducted at the request of the Legal Department. The Court further found that Defendant provided enough information about each communication to show why privilege attached without simultaneously destroying privilege by sharing too much. The Court agreed with Defendant’s assertion that the identified business communications were properly withheld. The Court further confirmed that the attorney-client privilege protects an attorney’s legal advice about a business decision.
The Court ruled that since Plaintiff failed to establish a basis for challenging Defendant’s privilege designations, the Court would not conduct an in camera review of the documents at issue.