UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

TERRI G. MARTIN, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:16-CV-59-JVB-JEM

)

ANTHONY COPELAND, et al., )

Defendant. )

OPINION AND ORDER

This matter is before the Court on Plaintiff’s Motion to Compel Defendants to Produce

Documents Requested Pursuant to Rule 34 and Subpoena Duces Tecum [DE 46], filed on January

11, 2018. Defendants filed a response on January 25, 2018, and Plaintiff filed a reply on February

1, 2018.

Plaintiff brought this lawsuit seeking damages for claims arising from her termination from

her position as a public health officer for the City of East Chicago. During discovery, Plaintiff issued

a subpoena duces tecum to Defendant Sandra Favella, Human Resources Director for the City of

East Chicago, requesting that she be deposed and that she bring with her various records, including

Plaintiff’s personnel file. Defendant Favella attended the deposition and brought a copy of Plaintiff’s

personnel file, together with a privilege log identifying 70 pages of the file that were omitted under

an assertion of attorney/client privilege. Plaintiff objects to the omission of those documents and

moves to compel Defendant to produce Plaintiff’s entire file, including the pages identified as

attorney communications. She argues that (a) she has an absolute right to access her entire personnel

file, including attorney communications, under Indiana statute governing access to public records;

and (b) that any attorney-client communication ceased to be privileged the moment they were placed

in her personnel file.
Access to Indiana public records is governed by the Indiana Code, Section 5-14-3-1 et seq.

Section 3 describes the right to inspect and copy records of any public agency, including any

political subdivision of the state. I.C. §§ 5-14-3-2(q)(2)(A), 5-14-3-3. Section 4(a) lists records that

“may not be disclosed . . . unless access to the records is specifically required by a state or federal

statute or is ordered by a court under the rules of discovery.” I.C. §§ 5-14-3-3; 5-14-3-4(a). Section

4(b) lists records that “may be excepted from section 3 of this chapter [that is, records that can be

withheld from inspection and copying] at the discretion of a pubic agency.” Among the types of

records that may be withheld at agency discretion are, pursuant to Section 4(b)(2), “[t]he work

product of an attorney” employed by the state or appointed by a public agency to represent the state,

its agencies, and their employees; and, pursuant to Section 4(b)(8) the “[p]ersonnel files of public

employees. . . However, all personnel file information shall be made available to the affected

employee or the employee’s representative.” I.C. § 5-14-3-4(b)(2), (8).

Plaintiff argues that the clause allowing public employees to access their own files in

subsection (8) takes precedence over the general prohibition of disclosure of attorney work product

articulated in subsection (2). But the structure of the statute itself argues against such a reading: the

clause requiring disclosure to an “affected employee” appears just after the general protection of

“personnel files” in subsection 8. I.C. § 5-14-3-4(b)(8). Nothing in the structure of the statute

indicates that the requirement to disclose personnel file information to an “affected employee” is

meant to override the protection of attorney work product provided for in subsection 2 and elsewhere

in Indiana and Federal law. Therefore, Defendant City of East Chicago may at its discretion 

withhold qualifying attorney work product, as defined in Section 2 of the statute, within an

employee’s personnel file.

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Plaintiff also argues that Defendants waived any possible claim to attorney-client privilege

when they placed the attorney communications into Plaintiff’s personnel file. Defendants disagree,

noting that no waiver of the privilege occurred because the omitted documents were never disclosed

to Plaintiff. It is uncontested that Plaintiff never received a copy of the omitted communications;

thus, no waiver of the attorney-client privilege occurred.

Plaintiff objects to the contents of the privilege log, contending that Defendants’ bare

assertion of privilege is not enough to support their withholding of discovery. Federal Rule of Civil

Procedure 26(b)(5)(A)(ii) specifies that a privilege log must “describe the nature of the documents,

communications, or tangible things not produced or disclosed–and do so in a manner that, without

revealing information itself privileged or protected, will enable other parties to assess the claim.”

Fed. R. Civ. P. 26(b)(5)(A)(ii). “The mere assertion of a privilege is not enough; instead, a party that

seeks to invoke the attorney-client privilege has the burden of establishing all of its essential

elements.” U.S. v. BDO Seidman, 337 F.3d 802, 811 (7th Cir. 2003); see also Hobley v. Burge, 433

F.3d 946, 947 (7th Cir. 2006). “An assertion of privilege therefore must be made on a document-bydocument basis.” In re Grand Jury Proceedings, 220 F.3d 568, 572 (7th Cir. 2000). “A party who

invokes any privilege [ ] must . . . provide to the opposing party a privilege log containing the

following information for each document not disclosed: (1) the name and job title or capacity of the

author(s)/originator(s); (2) the names of all person(s) who received the document or a copy of it and

their affiliation (if any) with the producing party; (3) a general description of the document by type

(e.g., letter, memorandum, report); (4) the date of the document; and (5) a general description of the

subject matter of the document.” In re Bridgestone/Firestone, Inc., ATX. ATX II, 129 F. Supp. 2d

1207, 1218-19 (S.D. Ind. 2001). A timely and adequate privilege log is required by the federal rules,

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and the failure to serve an adequate and timely privilege log may result in a waiver of any protection

from discovery. See Babych v. Psychiatric Solutions, Inc., 271 F.R.D. 603, 608 (N.D. Ill. 2010).

Here, the log that Defendant Favela brought to her deposition contained a list of pages, set

forth under the headings Bates Numbers, To, From, and Reason for Redaction. For each group of

pages, the “reason for redaction” given is “reserves Attorney/client privilege.” No dates, description

of document of type, or general description of the subject matter of the documents is provided.

Additionally, as noted by Plaintiff, at least 19 pages referenced in the log consist of materials sent

by Plaintiff’s own attorney; those pages are clearly not privileged. The Court is therefore unable to

discern which of the pages identified in the log qualify as attorney work product or are subject to

the attorney-client privilege.

Therefore, the Court DENIES Plaintiff’s Motion to Compel Defendants to Produce

Documents Requested Pursuant to Rule 34 and Subpoena Duces Tecum [DE 46] to the extent that

it seeks production of the entire file but ORDERS Defendants to PRODUCE to Plaintiff an

amended privilege log in full compliance with Federal Rule of Civil Procedure 26(b)(5) and the

elements set forth above, on or before July 19, 2018. 

The Court ORDERS that the discovery deadline in this case is extended through August 16,

2018.

SO ORDERED this 5th day of July, 2018.

 s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

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