In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3344
S ANDRA T.E., et al.,
Plaintiffs-Appellees,
v.
S OUTH B ERWYN S CHOOL D ISTRICT 100,
Defendant-Appellant,
and
S IDLEY A USTIN LLP,
Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05-CV-473—William J. Hibbler, Judge.
A RGUED F EBRUARY 24, 2009—D ECIDED F EBRUARY 25, 2009
O PINION M ARCH 30, 2010
Before R OVNER, W OOD , and SYKES, Circuit Judges.
With a notation that an opinion would follow.
2 No. 08-3344
S YKES, Circuit Judge. An elementary-school music
teacher in the South Berwyn School District 100 was
charged with sexually molesting numerous students
over a period of several years during his tenure in the
district. Some of the victims brought this civil lawsuit
against the District and a school principal who allegedly
knew about the abuse long before the charges were filed
but did not take appropriate responsive action. Reacting
to the criminal charges and the filing of the civil suit, the
School Board hired attorneys from Sidley Austin LLP to
conduct an internal investigation and provide legal
advice to the Board. As part of this investigation, Sidley
attorneys interviewed many current and some former
school-district employees and third-party witnesses. These
interviews were not recorded. Instead, the attorneys
took handwritten notes and later drafted memoranda
summarizing the interviews. Sidley delivered its findings
and legal advice to the School Board in an oral report and
a written executive summary, but has not represented
the defendants in this litigation.
During discovery the plaintiffs issued a subpoena for
the documents in Sidley’s possession relating to its
District 100 investigation. Relying on the attorney-client
privilege and the work-product doctrine, Sidley declined
to produce its notes and internal memoranda relating to
the employee and witness interviews and other legal
memoranda prepared in connection with the investiga-
tion. On the plaintiffs’ show-cause motion, the district
court concluded that Sidley had been hired to provide
investigative services, not legal services, and ordered
the firm to produce the documents. Sidley appealed.
No. 08-3344 3
Immediately following oral argument, we issued an
expedited order reversing the district court and holding
that the law firm’s documents were protected by the
attorney-client privilege and the work-product doctrine.
This opinion explains the rationale behind that sum-
mary order and also addresses an intervening develop-
ment regarding the scope of the collateral-order doctrine,
which supplied our jurisdiction to immediately review
the district court’s order.
I. Background
In January 2005 police arrested Robert Sperlik, an
elementary-school band teacher employed by District 100,
on charges that he had repeatedly sexually abused numer-
ous female students ages nine to twelve. Sperlik would tie
up or bind the girls with duct tape during private lessons
and then sexually molest them; the abuse began in 1998
and continued until Sperlik’s arrest in early 2005. Sperlik
eventually confessed to the crimes and was convicted and
sentenced to 20 years in prison. Some of Sperlik’s victims
told police they had reported the abuse to the school
principal after it occurred, but the principal failed to take
appropriate action against Sperlik. On January 26, 2005,
shortly after Sperlik’s arrest, some of the victims and
their families filed this civil lawsuit against District 100
and the school principal who was alleged to have been
deliberately indifferent to the ongoing sexual abuse; they
asserted claims under 42 U.S.C. § 1983, 20 U.S.C. § 1681
(Title IX of the Education Amendments of 1972), and
various state laws.
4 No. 08-3344
As news of Sperlik’s arrest became known, the families
of District 100 students were understandably outraged
at the extent and duration of the teacher’s crimes and the
possibility that the school administration knew about the
sexual abuse but had failed to respond. Reacting to the
criminal charges, the public outcry, and the filing of the
civil lawsuit, the School Board retained the law firm of
Sidley Austin LLP (then Sidley Austin Brown & Wood
LLP) to conduct an internal investigation.1 The School
Board wanted Sidley to review the criminal charges
filed against Sperlik, investigate the actions of school
administrators in response to the allegations of sexual
abuse, examine whether any district employees had failed
to comply with district policies or federal or state law,
and analyze the effectiveness of the District’s existing
compliance procedures. According to the February 4, 2005
engagement letter between Sidley and the School Board,
Sidley was to “investigate the response of the school
administration to allegations of sexual abuse of students”
and to “provide legal services in connection with” the
investigation. Scott Lassar, a partner at Sidley and a
former U.S. Attorney for the Northern District of Illinois,
spearheaded the investigation.
On the same day the engagement letter was issued, the
School Board president and superintendent of schools
1
At the time the School Board requested the internal investiga-
tion, only the School District, Sperlik, and the principal of the
elementary school that employed Sperlik were named as
defendants. The individual members of the School Board
were added as defendants in March 2006.
No. 08-3344 5
sent a joint letter to parents announcing the District’s
retention of Lassar to conduct the investigation. Ten days
later the superintendent sent another more detailed
letter to parents explaining that the investigation had
begun and would be completed as soon as possible. As
the investigation proceeded, attorneys from Sidley inter-
viewed many school-district employees, including cur-
rent and former principals, social workers, administra-
tive employees, and members of the School Board. Sidley
also interviewed a handful of third parties who had
never been employed by the School District. None of
the interviews were recorded. Instead, the attorneys
took notes of the witnesses’ answers and later prepared
written memoranda memorializing the interviews for
future use in Sidley’s legal advice to the Board. These
notes and memoranda are the subject of the present
discovery dispute.
Lassar and a Sidley colleague delivered an oral report
of the firm’s findings at a closed executive session of the
Board in April 2005, and later that month delivered a
written “Executive Summary”—marked “Privileged and
Confidential,” “Attorney-Client Communication,” and
“Attorney Work Product”—to the Board. This concluded
Sidley’s engagement; other lawyers have represented
the defendants throughout this litigation.
In the fall of 2006, the plaintiffs launched a discovery
effort aimed at forcing the disclosure of the contents of
Sidley’s investigation. They subpoenaed Lassar to appear
for a deposition and to produce documents in the firm’s
possession relating to Sidley’s work for the School Board.
6 No. 08-3344
After a motion to quash was denied, Sidley turned over
more than a thousand pages of documents. But the firm
withheld its notes and memoranda from the witness
interviews and other internal legal memoranda prepared
in connection with the investigation. These documents,
Sidley asserted, were protected by the attorney-client
privilege and the work-product doctrine. The plaintiffs
moved to compel production of the missing documents.
After a series of hearings—of which Sidley had only
informal notice and no opportunity to file a brief—the
district court ordered the School Board to disclose any
documents relating to Sidley’s investigation that it had
in its possession. The judge concluded that the Board
hired Lassar “as an investigator, not as an attorney,” and
therefore the attorney-client privilege did not apply. The
court later deferred ruling on the question of the docu-
ments in Sidley’s possession: “If the plaintiffs insist
that there [are] other documents or other information
which they are entitled to which you have not turned
over to the board, that’s a different issue. We haven’t
gotten to that issue.”
When it became clear that Sidley, not the School Board,
had the documents the plaintiffs wanted, the plaintiffs
turned their attention back to Sidley. They served a
second subpoena on Lassar, essentially a duplicate of the
first. Sidley responded by again asserting that the docu-
ments were protected by the attorney-client privilege
and the work-product doctrine. The plaintiffs then filed a
Motion for a Rule to Show Cause asking the court to hold
Lassar in contempt. This time the court solicited briefing
on the privilege and work-product claims, and the engage-
No. 08-3344 7
ment letter between Sidley and the Board and other
evidence about the nature of Sidley’s engagement was
brought before the court. After another hearing the court
declined to commence contempt proceedings because
Sidley had not yet been ordered to comply with the
subpoena. But the court summarily rejected Sidley’s
attorney-client privilege and work-product claims and
ordered the firm to produce the documents: “[T]he Court’s
prior ruling [regarding] attorney client privilege [will]
stand. . . . The materials requested by Plaintiffs [should]
be produced in accordance with the Court’s prior rul-
ing.” Sidley moved for reconsideration, but this motion
was denied. Sidley and District 100 appealed.2
II. Discussion
A. Appellate Jurisdiction under the Collateral-Order
Doctrine
Before proceeding to the merits of Sidley’s arguments,
we pause to address a recent development in the caselaw
governing the collateral-order doctrine, which supplied
our jurisdiction to hear an immediate appeal of the
district court’s disclosure order. In Mohawk Industries, Inc.
v. Carpenter, 130 S. Ct. 599, 603 (2009), the Supreme Court
held that discovery disclosure orders adverse to the
2
A different panel of this court recently resolved a separate
appeal by the school principal involving her claim of qualified
immunity. Sandra T.E. v. Grindle, No. 09-2920, 2010 WL 938047
(7th Cir. Mar. 17, 2010) (affirming denial of qualified immunity).
8 No. 08-3344
attorney-client privilege do not qualify for immediate
appeal under the collateral-order doctrine of Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949).
Resolving a circuit split, the Court held that “[p]ostjudg-
ment appeals, together with other review mechanisms,
suffice to protect the rights of litigants and preserve
the vitality of the attorney-client privilege.” Mohawk
Industries, 130 S. Ct. at 603.
Mohawk Industries, however, concerned the question
whether a party may immediately appeal a disclosure
order adverse to its claim of attorney-client privilege.
The order at issue here was against a nonparty to the
litigation; we have previously held that unlike a party,
a nonparty subject to a discovery order has no remedy
at the end of the litigation and so may obtain immediate
review of a discovery order rejecting a privilege claim.
See Burden-Meeks v. Welch, 319 F.3d 897, 900-01 (7th Cir.
2003). Burden-Meeks adhered to an existing line of circuit
cases, the most recent of which was Dellwood Farms, Inc. v.
Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir. 1997); the
opinion, however, noted a division in the circuits on the
question of a nonparty’s right to immediately appeal a
discovery order. Burden-Meeks, 319 F.3d at 900-01. It is
unclear whether our circuit’s approach to this ques-
tion—affirmed but questioned in Burden-Meeks—survives
the holding and rationale of Mohawk Industries. But
because our expedited order issued before Mohawk Indus-
tries was decided and at a time when our circuit law
permitted an immediate appeal, we simply note the
issue for the future but need not resolve it here.
No. 08-3344 9
B. Attorney-Client Privilege and Work-Product Doctrine
Sidley claims that the interview notes and legal memo-
randa its attorneys prepared in connection with the
District 100 investigation are protected from disclosure
by both the attorney-client privilege and the work-
product doctrine. The attorney-client privilege protects
communications made in confidence by a client and a
client’s employees to an attorney, acting as an attorney,
for the purpose of obtaining legal advice. See Upjohn Co.
v. United States, 449 U.S. 383, 394-99 (1981); Trammel v.
United States, 445 U.S. 40, 51 (1980). The privilege
belongs to the client, although an attorney may assert
the privilege on the client’s behalf. See United States v.
Smith, 454 F.3d 707, 713 (7th Cir. 2006). The work-product
doctrine protects documents prepared by attorneys in
anticipation of litigation for the purpose of analyzing
and preparing a client’s case. See F ED. R. C IV. P. 26(b)(3);
United States v. Nobles, 422 U.S. 225, 238-39 (1975); United
States v. Smith, 502 F.3d 680, 689 (7th Cir. 2007). Unlike the
attorney-client privilege, the attorney has an independent
privacy interest in his work product and may assert the
work-product doctrine on his own behalf; the doctrine’s
protection is not waived simply because the attorney
shared the information with his client. See Hobley v.
Burge, 433 F.3d 946, 949-50 (7th Cir. 2006).
To determine if a communication falls within the pro-
tection of the attorney-client privilege, we ask: (1) whether
“legal advice of any kind [was] sought . . . from a profes-
sional legal adviser in his capacity as such”; and
(2) whether the communication was “relat[ed] to that
10 No. 08-3344
purpose” and “made in confidence . . . by the client.”
United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997). It
appears that the district court assumed that when an
attorney performs investigative work, he is not acting as
an attorney for purposes of the privilege; this raises a
legal issue about the scope of the privilege, so our
review is de novo.3 See Jenkins v. Bartlett, 487 F.3d 482,
490 (7th Cir. 2007) (questions about scope of attorney-
client privilege reviewed de novo); see also Better Gov’t
Bureau, Inc. v. McGraw (In re Allen), 106 F.3d 582, 601 (4th
Cir. 1997) (classifying an error of the kind alleged in
this case as a “legal one”).
The judge’s decision in this case developed over a
series of hearings and numerous minute orders. As we
have noted, Sidley was not provided formal notice and
an opportunity to present a case for the privilege prior
to the first two of these hearings; only after the plaintiffs
moved for a contempt sanction against Lassar was
Sidley given formal notice and an opportunity to brief the
issue. It appears the judge was influenced in the earlier
3
The plaintiffs argue that the determination of whether an
attorney was acting as an attorney should be subject to clear-
error review. In this case, as we explain below, the court’s
error was a legal one: The court implicitly assumed that an
attorney hired to conduct an investigation never acts in his
capacity as an attorney. See, e.g., Better Gov’t Bureau, Inc. v.
McGraw (In re Allen), 106 F.3d 582, 601 (4th Cir. 1997). Thus, we
review the court’s order de novo. We nonetheless note that
even under a clear-error standard, we would reverse the
district court’s order.
No. 08-3344 11
hearings by the letters the school superintendent and
Board president sent to parents reassuring them of the
District’s desire to discover the truth about the circum-
stances surrounding Sperlik’s abuse and announcing the
Board’s decision to retain Lassar to “conduct a thorough
investigation.” In the judge’s view, these statements
pointed to the conclusion that Sidley was hired as an
investigator, and as such, the privilege did not apply.
Later on, in the proceedings on the plaintiffs’ Motion
for a Rule to Show Cause against Lassar, the judge all
but ignored the engagement letter, which should have
been the most important piece of evidence. The engage-
ment letter between Sidley and the School Board
explained that Sidley had been hired to “investigate the
response of the school administration to allegations of
sexual abuse of students” and “provide legal services in
connection with the specific representation.” There is
no indication that the judge actually considered the
engagement letter when it was brought to the court’s
attention in these later proceedings; rather, the judge
simply reiterated his earlier ruling that Sidley had been
hired as an investigator and the privilege therefore
did not apply.
This oversight was a mistake; the engagement letter
brings this case squarely within the Supreme Court’s
decision in Upjohn, which explained that factual investi-
gations performed by attorneys as attorneys fall com-
fortably within the protection of the attorney-client privi-
lege. In Upjohn a corporation’s in-house counsel investi-
gated the role of some of the corporation’s employees in
12 No. 08-3344
making potentially illegal payments to foreign govern-
mental officials; this investigation included interviews
with corporate officers and employees. A separate
federal tax inquiry into the alleged misconduct was
pending, and federal investigators attempted to obtain
the results of the corporation’s internal investigation by
issuing a summons for documents memorializing the
employees’ interviews with the corporation’s in-house
counsel. The Supreme Court held that the attorney-
client privilege applied. Upjohn, 449 U.S. at 401.
The Court began by noting that “[t]he first step in the
resolution of any legal problem is ascertaining the
factual background and sifting through the facts with
an eye to the legally relevant.” Id. at 390-91; see also Tram-
mel, 445 U.S. at 51 (“The lawyer-client privilege rests on
the need for the advocate and counselor to know all that
relates to the client’s reasons for seeking representation
if the professional mission is to be carried out.”). The
Court held that because “[t]he communications at issue
were made by Upjohn employees to counsel for Upjohn
acting as such, at the direction of corporate superiors
in order to secure legal advice from counsel,” the “com-
munications must be protected against compelled disclo-
sure.” Upjohn, 449 U.S. at 394-95. The federal investigators
could not force disclosure of the notes and other docu-
ments made by the in-house counsel to discover what
the employees had said but instead must interview the
employees themselves. Id. at 396.
Following Upjohn, other circuits have concluded that
when an attorney conducts a factual investigation in
No. 08-3344 13
connection with the provision of legal services, any notes
or memoranda documenting client interviews or other
client communications in the course of the investigation
are fully protected by the attorney-client privilege. See,
e.g., In re Allen, 106 F.3d at 603 (“The relevant question is
not whether [the attorney] was retained to conduct an
investigation, but rather, whether this investigation was
related to the rendition of legal services.” (internal quota-
tion marks omitted)); United States v. Rowe, 96 F.3d 1294,
1297 (9th Cir. 1996) (emphasizing that Upjohn made
“clear that fact-finding which pertains to legal advice
counts as ‘professional legal services’ ”). For example, in
In re Allen, 106 F.3d 582, the Fourth Circuit confronted a
district-court ruling virtually identical to the one at issue
in this case. There, the district court had concluded that
a special counsel hired by the West Virginia Attorney
General to conduct an investigation into alleged miscon-
duct within the state Department of Justice was acting
as an investigator and not an attorney because various
client letters described the attorney’s work as an “investi-
gation.” In reversing, the Fourth Circuit noted that “clients
often do retain lawyers to perform investigative work
because they want the benefit of a lawyer’s expertise
and judgment,” and “if a client retains an attorney to
use her legal expertise to conduct an investigation, that
lawyer is indeed performing legal work.” Id. at 604.
The same is true here. The engagement letter spells
out that the Board retained Sidley to provide legal serv-
ices in connection with developing the School Board’s
response to Sperlik’s sexual abuse of his students.
Sidley’s investigation of the factual circumstances sur-
14 No. 08-3344
rounding the abuse was an integral part of the package of
legal services for which it was hired and a necessary
prerequisite to the provision of legal advice about how
the District should respond. Although an engagement
letter cannot reclassify nonprivileged communications
as “legal services” in order to invoke the attorney-client
privilege, see Burden-Meeks, 319 F.3d at 899 (business
advice cannot be considered legal services), the conduct
of Sidley attorneys during the investigation confirms
that they were acting in their capacity as attorneys.
During the confidential interviews with school-district
employees, the attorneys provided so-called “Upjohn
warnings” emphasizing that Sidley represented the
School Board and not the employee and that the School
Board had control over whether the conversations re-
mained privileged. No third parties attended the inter-
views, the School Board received Lassar’s report of the
firm’s findings during an executive session not open to
the public, and the written executive summary that
Sidley turned over to the Board was marked “Privileged
and Confidential,” “Attorney-Client Communication,” and
“Attorney Work Product.” If more were needed, affida-
vits submitted into the record by Lassar, his Sidley col-
leagues, and the School Board president emphasized
that Sidley had been hired to provide legal advice in the
context of the facts it uncovered during the internal
investigation. Because the Sidley lawyers were hired
in their capacity as lawyers to provide legal ser-
vices—including a factual investigation—the attorney-
client privilege applies to the communications made
and documents generated during that investigation.
No. 08-3344 15
The fact that the privilege is invoked to protect com-
munications made by employees of a governmental
entity rather than a private party does not change the anal-
ysis. The plaintiffs suggest that shielding the contents of
Sidley’s interviews with school-district personnel—paid
for by the taxpayers and involving a matter of grave
public concern—is contrary to the public interest and
should not be permitted. We have previously held that the
privilege does not apply to communications between a
state officeholder and his state-government attorney
when the attorney is subpoenaed to give testimony before
a federal grand jury. See In re: A Witness Before the Special
Grand Jury 2000-2, 288 F.3d 289 (7th Cir. 2002) (general
counsel to Illinois governor could not assert attorney-client
privilege to avoid giving grand-jury testimony against
governor). But we did not articulate in In re: A Witness
a generally applicable exception for communications
between governmental employees and taxpayer-paid
counsel.
This is a civil case for damages against a local unit of
government and certain individual public employees, not
a grand-jury proceeding. Although the allegations are
very serious and there are important public as well as
private interests at stake, we think the policies under-
lying the attorney-client privilege have their normal
application. See Ross v. City of Memphis, 423 F.3d 596, 603
(6th Cir. 2005) (“The civil context presents different
concerns because government[al] entities are frequently
exposed to civil liability. The risk of extensive civil
liability is particularly acute for municipalities, which do
not enjoy sovereign immunity.”). Of course, the attorney-
16 No. 08-3344
client privilege protects not only the attorney-client
relationship in imminent or ongoing litigation but also
the broader attorney-client relationship outside the litiga-
tion context. Confidential legal advising promotes the
public interest “by advising clients to conform their
conduct to the law and by addressing legal concerns
that may inhibit clients from engaging in otherwise
lawful and socially beneficial activities.” United States v.
BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007). This
is true for public clients no less than private ones. The
public interest is best served when agencies of the gov-
ernment have access to the confidential advice of
counsel regarding the legal consequences of their past
and present activities and how to conform their future
operations to the requirements of the law. See also
Ross, 423 F.3d at 603 (“[G]overnment[al] entities are
well-served by the privilege [in the civil context], which
allows them to investigate potential wrongdoing more
fully and, equally important, pursue remedial options.”).
The work-product doctrine also protects the materials at
issue here from disclosure; and to the extent some of the
witnesses interviewed by Sidley attorneys were not
district employees, this is an independent rather than a
duplicate source of protection.4 Codified at Rule 26(b)(3)
4
Everyone in this appeal assumes that the attorney-client
privilege applies to statements made by witnesses regardless
of whether they were currently employed by the School
District at the time they were interviewed. An argument could
be made that the attorney-client privilege does not protect
(continued...)
No. 08-3344 17
of the Federal Rules of Civil Procedure, the work-product
doctrine is designed to serve dual purposes: (1) to
protect an attorney’s thought processes and mental im-
pressions against disclosure; and (2) to limit the circum-
stances in which attorneys may piggyback on the fact-
finding investigation of their more diligent counterparts.
See, e.g., Hickman v. Taylor, 329 U.S. 495 (1947).
The district court’s conclusion that the work-product
doctrine did not apply was subsumed in its conclusion
that Sidley was hired as an investigator, not an attorney,
and therefore its notes of witness interviews and
related documents were not protected. We rejected this
conclusion in the context of a work-product claim in
Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th
Cir. 1970). See id. at 492 (“Where an attorney personally
prepares a memorandum of an interview of a witness
with an eye toward litigation[,] such memorandum
4
(...continued)
statements made in conversations with former employees,
although every circuit to address this question has concluded
that the distinction between present and former employees
is irrelevant for purposes of the attorney-client privilege. See
In re Allen, 106 F.3d at 605-07; City of Long Beach v. Standard Oil
Co. of Cal. (In re Coordinated Pretrial Proceedings in Petroleum
Prods. Antitrust Litig.), 658 F.2d 1355, 1361 n.7 (9th Cir. 1981). We
need not decide this question because it makes no difference
in this case; the work-product doctrine would protect any
notes from interviews with former employees as equally as it
protects notes from interviews with third parties who
never worked for the School District.
18 No. 08-3344
qualifies as work product even though the lawyer func-
tioned primarily as an investigator.”). Work-product
protection applies to attorney-led investigations when the
documents at issue “can fairly be said to have been pre-
pared or obtained because of the prospect of litigation.”
Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976-77
(7th Cir. 1996) (internal quotation marks omitted). There
is a distinction between precautionary documents “devel-
oped in the ordinary course of business” for the “remote
prospect of litigation” and documents prepared because
“some articulable claim, likely to lead to litigation, [has]
arisen.” Binks Mfg. Co. v. Nat’l Presto Indus., Inc., 709
F.2d 1109, 1120 (7th Cir. 1983) (emphasis added) (altera-
tion in original) (internal quotation marks omitted).
Only documents prepared in the latter circumstances
receive work-product protection.
The plaintiffs maintain that the Sidley investigation
was only designed to quell public outrage and prevent
similar occurrences in the future, but the record simply
does not support that conclusion. The chronology of
events confirms that Sidley was hired to conduct the
District 100 investigation not merely in anticipation of
likely litigation but in response to the actual filing of this
lawsuit. True, the Board had other motivations as
well—it was responding to the public distress about the
allegations, the possible complicity of the school prin-
cipal, and the urgent need to implement prospective
protective measures—but this does not remove the in-
vestigation from the protection of the work-product
doctrine. That Sidley was not the District’s litigation
counsel is not dispositive. Sidley’s witness-interview notes
No. 08-3344 19
and memoranda were plainly prepared “with an eye
toward” this pending litigation and therefore qualify for
work-product protection.
In limited situations documents protected as attorney
work product are nonetheless discoverable if a party
can establish a “substantial need” for the documents
and cannot obtain equivalent materials without “undue
hardship.” FED. R. C IV. P. 26(b)(3)(A)(ii). Disclosure of
witness interviews and related documents, however, is
particularly discouraged. See, e.g., Upjohn, 449 U.S. at 398-
99 (“Forcing an attorney to disclose notes and memo-
randa of witnesses’ oral statements is particularly
disfavored because it tends to reveal the attorney’s mental
processes . . . .”). The plaintiffs suggest that they need
Sidley’s interview notes and memoranda for impeach-
ment, but we have been extremely reluctant to allow
discovery of attorney work product simply as impeach-
ment evidence. See, e.g., Hauger v. Chi., Rock Island & Pac.
R.R. Co., 216 F.2d 501, 508 (7th Cir. 1954) (“A court is not
justified in ordering a litigant to permit his adversary to
inspect witness statements, which he has procured in
preparing for trial, upon the adversary’s mere surmise or
suspicion that he might find impeaching material in the
statements.”). The plaintiffs acknowledge that the infor-
mation in Sidley’s files would really only bolster already
existing impeachment evidence contained in their own
investigation or in the police record. Under these circum-
stances, the case for disclosure is particularly weak. See
Gay v. P. K. Lindsay Co., 666 F.2d 710, 713 (1st Cir. 1981)
(statement in attorney’s notes that could be used to im-
peach witness was not discoverable when witness could
20 No. 08-3344
have been deposed). The plaintiffs have fallen far short
of showing they have a substantial need for the mate-
rials at issue here.
Finally, the plaintiffs contend that the defendants have
waived any right to rely on the attorney-client privilege
or the work-product doctrine because they failed to
provide a detailed privilege log detailing the documents
that were withheld. See F ED. R. C IV. P. 26(b)(5) (requiring
parties to claim the basis of the privilege and describe
the nature of the privileged documents in a way that
will allow other parties to assess the claim). The focus
of this dispute, however, is not on documents in the
defendants’ possession but documents in Sidley’s posses-
sion, and Sidley filed a proper privilege log adequately
describing what it withheld.
R EVERSED.
3-30-10