some may be privileged and some may not. Although Bland chastises Fiatallis for not
producing a privilege log at an earlier date, nothing in the parties’ briefs indicates that one
was previously necessary. In normal situations, a party responding to document requests
will produce all non-privileged material and provide its opponent with a privilege log
explaining why it is not producing certain allegedly privileged documents. In such a case, the
opposing party never sees the privileged records, although it may dispute the assertion of
privilege based on the descriptions in the log.

In this case, we are not even certain whether Bland has served Fiatallis with
document requests, let alone asked it for documents that are covered by privilege. Instead,
Fiatallis first became aware that Bland possessed potentially privileged documents when he
produced them back to Fiatallis in discovery. Given this scenario, we do not believe that
Fiatallis was required to provide Bland with a privilege log, although doing so may have
shortened the length of time the parties and Court needed to spend on this matter. Once
Fiatallis provides us with a log, we will use it to assess the documents individually while also
taking into account Bland’s arguments that the documents are not privileged. If, after
receiving a copy of Fiatallis' log, Bland wishes to supplement its argument that certain
documents are not privileged, we will allow him to do so.

In his response, Bland additionally argued that both the crime-fraud exception as well
as ERISA’s fiduciary duty exception obviate any claim of privilege that Fiatallis might have.
Bland subsequently dropped his invocation of the crime-fraud exception in its sur-reply and
we do not address that argument here. The fiduciary duty exception to the attorney-client
privilege in ERISA matters holds that communications between a fiduciary of an ERISA plan
and legal counsel regarding management of the plan are not privileged as to the plan's

beneficiaries. See In Re Long Island Lighting Co., 129 F.3d 268, 272 (2TM. Cir. 1997). In its



Jury Proceedings, 220 F.3d 568, 571 (7" Cir. 2000). This may often include the review of
the materials by the Court in camera. “Only when the district court has been exposed to the
contested documents and the specific facts which support a finding of privilege under the
attorney-client relationship for each document can it make a principled determination as to
whether the attorney-client privilege in fact applies.” Holifield v. United States, 909 F.2d 201,
204 (7" Cir, 1990).

In order for the attorney-client privilege to attach to a document, certain factors must
be present. The general rule was set out in United States v. White, 950 F.2d 426, 430 (7*
Cir. 1991): 1) where legal advice of any kind is sought 2) from a professional legal advisor 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
the legal advisor, 8) except the protection may be waived, The privilege may cover not only
communications made by a client, but also include those communications from an attorney
to his or her client that contain privileged information. See Rehling v. City of Chicago, 207
F.3d 1009, 1019 (7" Cir. 2000). Such appears to be the situation with the documents at
issue here. Fiatallis asserts that the documents at issue contain privileged communications
from the company’s in-house and outside counsel regarding a possible corporate
restructuring and employee benefits issues.

As we mentioned above, prior to our undertaking an in camera review of the
documents, Fiatailis must provide us with a log detailing the reason that each document — or,
where possible, each category of documents — is subject to the privilege.* This will allow us

to make a reasoned determination about each document individually, since it is possible that

3 This request is espacially necessary since it appears that Fiatallis is not asserting a privilege over every
single document in Bland’s possession,



reply, Fiatallis argues that none of the documents over which it is claiming a privilege
concern the management or administration of the plan, instead they concern the design of
the plan itself and other issues related to corporate restructuring at Fiatallis. Thus, the
fiduciary duty exception does not apply. We take note of each party's arguments
and will address them when we review the documents in camera.

Fiatallis is ordered to produce a privilege log to the Court and the plaintiff within two
weeks of this order. In the meantime, plaintiff's attorneys must keep the documents in a

secure location and may not use them for any reason in this litigation. It is so ordered.

ENTER:

Ye LEH eter
MICHAEL T. MASON =“
United States Magistrate Judge

Dated: October 22, 2002



Minty Onder Foren (06/97)
é

United States District Court, Northern District of Dlinois

Name of Assigned Judge F Sitting Judge if Other icha
or Magistrate Judge James B. Zagel ae seed Sater Michael T. Mason
CASE NUMBER 02 C 69 DATE 10/22/2002
CASE Bland vs. Fiat Allis NA
TITLE
Tin the following hox (a) indicate che party filing the motion, e-z.,plaini, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: othe motion being presented.)

DOCKET ENTRY;

qd) BD Filed motion of | use listing in “Motion” box above. ]

(2) o Brief in support of motion due.

G3) Oo Answer bricf to motion due__—«. Reply to answer briefdue

(4) Oo Ruling/Hearing on setfor at

(5) Oo Status hearing[held/continued to] [sct for/re-set for] on__.§_set for at

(6) oO Pretrial conference[held/continued to] [set for/re-set for] on setfor at

(7) o Trial[sct for/re-set for]on at _

(8) Oo [Bench/Jury trial] [Hearing] held/continued to_____at

(9) o This case is dismissed [with/without] prejudice and without costs|by/agreement/pursuant to)

OFRCP4(m) OO Local Rule 41.1 LO FRCP41(a)(1) [ FROP41(a)(2).

(0) ME [Other docket entry] Fiatallis is ordered to produce a privilege log to the Court and the plaintiff by
11/5/02. In the meantime, plaintiff’s attorneys must keep the documents in a secure location and may not
use them for any reason in this litigation. Enter Memorandum Opinion and Order.

(1) ff [For further detail see order attached to the original minute order,]

No notices required, advised in apen court,
a

No notices required. nunther o€ notices,

vo | Notices mailed by judge’s staff.

OCT 2 3 2002

Notified counsel by telephone,

date dockated
Docketing to mail notices.

Mail AO 450 form 1é a a ME

oY | Copy to judge/magistrate judge,

tooa2002

diate mailed patice

courtroom
KP deputy’s

initials

Date/time received in

central Clerk's Office, mailing Ucputy inininls



IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LOU BLAND, ET AL.,

Plaintiffs,
No. 02 C 69
v.
Hon. James B. Zagel
FIAT ALLIS NORTH AMERICA, INC.,

an Illinois corporation, Mag. Judge Mason ng

Defendant.

MEMORANDUM OPINION AND ORDER

Michael T. Mason, United States Magistrate Judge:

Before us is a motion for protective order filed by defendant Fiatallis Nortt America, dad
Inc. (“Fiatallis”). It seeks to have returned to it certain allegedly privileged documents that
are in the possession of the plaintiff, former Fiatallis employee Lou Bland. The parties have
extensively briefed the issue of whether the documents are truly privileged, and Fiatallis has
provided copies of the documents to the Court for an in camera review. After reviewing the
parties’ briefs, we have determined that we cannot conduct a proper in camera review
without first receiving from Fiatallis a description of the reason(s) it is asserting a privilege
over each particular record. However, in so ordering, we do not wish to imply that Fiatallis
acted improperly in not providing either the Court or Bland with such a description at an
earlier time. Further, we wish to address several of the issues raised in the parties’ briefs
now so that they may be put to rest prior to our in camera review.

Plaintiff Bland, who represents a putative class of Fiatallis employees, has sued the
defendant for violations of the Employee Retirement Income Security Act of 1974 (“ERISA”)

29 U.S.C. § 1001 et.seq. He formerly served as Fiatallis’ Vice President of Employee

Relations, and later its General Counsel, and received copies of the documents at issue in

S 2



connection with his employment. Bland apparently retained copies of the documents after
he was terminated,' later providing them to his attorneys for production to the defendant in
response to its document request. Bland's attorneys recognized that the documents
contained potentially privileged information and informed Fiatallis. Fiatallis asserted the
attorney-client privilege over these documents and demanded both their return and that they
not be used for any purpose in the litigation. After the parties began briefing this issue,
Bland produced another group of documents, some of which Fiatallis also contends are
privileged.

Bland objects to the designation of the documents as privileged for several reasons.
First, he objects that Fiatallis has not produced any sort of privilege log or otherwise provided
any evidence or argument why the documents fall under the protection of the attorney-client
privilege.? Indeed, Bland argues that on their face, it is apparent that the documents are not
privileged, since they were created for business, rather than legal, purposes, and because
the “fiduciary duty exception” to claims of privilege regarding ERISA documents applies.
Finally, Bland asserts that the crime-fraud exception to the attorney-client privilege applies in
this case, obviating any privilege that might otherwise attach.

Generally, an entity claiming that documents are protected by the attorney-client
privilege has the burden of proving that the documents are actually privileged. See United
States v. Evans, 113 F.3d 1457, 1461 (7" Cir. 1997). Determining whether particular

documents are privileged requires a highly fact-specific inquiry. See /n the Matter of Grand

" Fiataltis contends that Bland violated the confidentiality portion of his employment agreement when he
shared these documents with his lawyers. We do not need to reach this issue to determine whether the dacuments
are privilaged.

2 Fiatallis also argues that at least some of the documents are protected by the work-product privilege.
To the extent that itis asserting such a privilege, it should include this information in the description it files with the
Court pursuant to this order.