Opinion
No. 19 CV 00147
2021-08-24
Felicia HANKINS, Plaintiff, v. ALPHA KAPPA ALPHA SORORITY, INC., et al., Defendants.
Brandon Edison Vaughn, David E. Bland, Robins, Kaplan, Miller & Ciresi, Minneapolis, MN, Thomas Edison Vaughn, Thomas E. Vaughn & Associates, Chicago, IL, Tyrone C. Means, Pro Hac Vice, Means Gillis Law, P.C., Montgomery, AL, for Plaintiff. Andrew J. Roth, Laura Lee Buecker, Tobin J. Taylor, Heyl Royster Voelker & Allen, P.C., Chicago, IL, Christopher John Drinkwine, Heyl Royster, Rockford, IL, for Defendant Alpha Kappa Alpha Sorority, Inc., Gamma Chi Chapter. Michael John Charysh, John J. Beribak, Charysh & Schroeder, Ltd., Chicago, IL, for Defendant Alpha Kappa Alpha Sorority, Inc., Delta Chi Omega Chapter. Arlene Y. Coleman, A.Y. Coleman & Associates, Chicago, IL, Jeanette Samuels, Samuels & Associates, Ltd., Chicago, IL, for Defendant Alexandria Anderson. Scott Robert Shinkan, Alexander Joseph Brinson, Clausen Miller P.C., Chicago, IL, for Defendant Alexandria Clemons. Albert C. Angelo, Blair Theisen Titcomb, Chadwel David Kasdin, Hinshaw & Culbertson LLP, Chicago, IL, for Defendant Cariana Chambers. Charles E. Reiter, III, Daniel Jerome Burns, Katherine Carole Morrison, Reiter Burns LLP, Chicago, IL, for Defendant Ava Thompson Greenwell. Kevin John Moore, Law Office of Kevin J. Moore, Western Springs, IL, for Defendant Bianca Valdez.
Brandon Edison Vaughn, David E. Bland, Robins, Kaplan, Miller & Ciresi, Minneapolis, MN, Thomas Edison Vaughn, Thomas E. Vaughn & Associates, Chicago, IL, Tyrone C. Means, Pro Hac Vice, Means Gillis Law, P.C., Montgomery, AL, for Plaintiff. Andrew J. Roth, Laura Lee Buecker, Tobin J. Taylor, Heyl Royster Voelker & Allen, P.C., Chicago, IL, Christopher John Drinkwine, Heyl Royster, Rockford, IL, for Defendant Alpha Kappa Alpha Sorority, Inc., Gamma Chi Chapter. Michael John Charysh, John J. Beribak, Charysh & Schroeder, Ltd., Chicago, IL, for Defendant Alpha Kappa Alpha Sorority, Inc., Delta Chi Omega Chapter. Arlene Y. Coleman, A.Y. Coleman & Associates, Chicago, IL, Jeanette Samuels, Samuels & Associates, Ltd., Chicago, IL, for Defendant Alexandria Anderson. Scott Robert Shinkan, Alexander Joseph Brinson, Clausen Miller P.C., Chicago, IL, for Defendant Alexandria Clemons. Albert C. Angelo, Blair Theisen Titcomb, Chadwel David Kasdin, Hinshaw & Culbertson LLP, Chicago, IL, for Defendant Cariana Chambers. Charles E. Reiter, III, Daniel Jerome Burns, Katherine Carole Morrison, Reiter Burns LLP, Chicago, IL, for Defendant Ava Thompson Greenwell. Kevin John Moore, Law Office of Kevin J. Moore, Western Springs, IL, for Defendant Bianca Valdez.
ORDER
HEATHER K. McSHAIN, United States Magistrate Judge
Before the Court is Plaintiff's Motion to Compel Alpha Kappa Alpha Sorority, Inc.'s Investigative Report Related to Jordan Hankins' Death. [264]. Non-party Alpha Kappa Alpha Sorority, Inc. ("AKA") opposes this motion, arguing that the investigative report is protected by the attorney-client privilege and the work-product doctrine. The Court has reviewed the report in camera, as well as Plaintiff's and AKA's submissions, and finds neither protection applicable. Therefore, Plaintiff's motion to compel is granted.
Bracketed numbers refer to entries on the district court docket. Referenced page numbers are taken from the CM/ECF header placed at the top of filings.
Background
On January 9, 2017, Jordan Hankins died by suicide in her dorm room at Northwestern University. [11] 2, 11, ¶¶ 1, 70. Jordan had allegedly suffered through severe hazing during a sorority-membership initiation process. [Id.] 10-11, ¶¶ 66-70. In the wake of Jordan's death, the sorority conducted an investigation, the results of which were memorialized in a report. [279] 2-3.
Nearly two years later, Jordan's mother, Felicia Hankins, brought suit for the estate of her daughter against the sorority and individual sorority members under the Illinois Wrongful Death Act, 740 ILCS 180/1 et seq., and the Illinois Survival Act, 755 ILCS 5/27-6 et seq. Specifically, Hankins asserted claims against AKA, the national sorority organization; the undergraduate Gamma Chi Chapter of AKA; the alumnae Delta Chi Omega Chapter of AKA; and Kathy Walker-Steele, the Central Regional Director of AKA. Hankins also sued several individual sorority members.
All defendants except for AKA's Gamma Chi Chapter moved to dismiss the Amended Complaint. On March 22, 2020, the District Court granted the motions to dismiss filed by AKA and Walker-Steele. [151]. The Court denied the other defendants' motions. [Id.].
A summons was issued as to the Gamma Chi Chapter on April 21, 2020—nearly one month after the District Court issued its ruling on the other defendants' motions to dismiss. [151].
In August 2020, Hankins issued a subpoena to AKA. [255] 9. AKA produced several batches of responsive documents between November 2020 and February 2021, and ultimately produced a privilege log on February 24, 2021. [Id.] 9-11; [264] 1. The log was comprised of two entries identifying documents AKA asserted were protected from production by the attorney-client privilege and work-product doctrine, including the investigative report created in the aftermath of Jordan's death. [266-2]. Hankins objected to AKA's privilege and work product assertions as to the investigative report and requested an amended privilege log, which AKA provided on March 17, 2021. [255] 11; [266-3]. AKA also produced a declaration from Dorothy Buckhanan Wilson, AKA's Supreme Basileus from July 2014 to July 2018. [266-1]. Hankins still objected to the withholding of the report, and despite meet-and-confer efforts, Hankins and AKA were unable to resolve the dispute. [264] 2.
Hankins filed the instant motion to compel on March 24, 2021. [264]. The motion seeks the production of AKA's investigative report. [264] 2; [265] 4-5. The report was described in the last entry of AKA's amended privilege log as "Alpha Kappa Alpha Sorority, Incorporated AKA Investigation Team (AKA I-Team) Central Region - Gamma Chi Chapter Northwestern University, Evanston, Illinois Bates Nos. 003297-003370." [266-3] 3. The log entry identified Giselé Casanova as the report's author and Ms. Buckhanan Wilson, Valarie Hill, Esq., and Victor Henderson, Esq. as the recipients, but provided no descriptions of their positions (beyond the attorney designations for Hill and Henderson). [Id.]. AKA also included a footnote stating that the report may have been "made available" to two individuals who were part of an AKA litigation team. [Id.] 3 n.1. AKA filed a brief opposing Hankins's motion to compel on April 14, 2021. [279].
The Court notes that Hankins styled her motion as one to compel production pursuant to Federal Rule of Civil Procedure 37. [264] 1. However, "Rule 37 governs motions to compel production by parties," and AKA is no longer a party in this case. Wong v. Bd. of Educ. of Cmty. Consol., No. 11-CV-7357, 2013 WL 6571326, at * 2 n.3 (N.D. Ill. Sep. 30, 2013). The proper vehicle to seek to compel a non-party to produce documents would be a motion under Rule 45 to enforce the subpoena. Id. Nonetheless, the Court need not address this procedural issue, which AKA did not raise, as the scope of material obtainable via a Rule 45 subpoena is commensurate with that provided under the discovery rules. See infra.
The Court held a motion hearing on April 29, 2021, after which the Court ordered AKA to amend its privilege log, including clarification regarding the report's complete list of recipients. [283]. In light of statements made by AKA's counsel during the motion hearing indicating that there were additional facts bearing on AKA's privilege assertions that were not reflected in its amended privilege log, the Court also invited AKA to submit a supplemental declaration. [Id.]. On May 14, 2021, AKA filed a supplemental submission [286], including a second amended privilege log [286-3], a supplemental declaration from Ms. Buckhanan Wilson [286-1], and a declaration from Giselé M. Casanova, Chairperson of the International Standards Committee and the lead of the investigation team that conducted the investigation following Jordan's death [286-2].
AKA's second amended privilege log describes the investigative report as "reflecting the Investigation Team's recommendations, analysis, findings, conclusions, and summaries and impressions interviewee [sic], and prepared in anticipation of litigation." [286-3] 5. Like the prior log version, the second amended log identifies Ms. Casanova as the author of the report. In addition to the previously identified recipients (Ms. Buckhanan Wilson, Ms. Hill, and Mr. Henderson), the log also identifies Ms. Walker-Steele and Martha Perine Beard as recipients. [Id.]. The log includes the following titles or brief descriptions of these individuals' positions: Giselé Casanova ("Investigation Team Lead/Chairperson of the International Standards Committee"); Ms. Buckhanan Wilson ("overseeing investigation"); Ms. Walker-Steele ("Central Regional Director"); Ms. Hill ("Litigation Team Member"); Ms. Perine Beard ("International Parliamentarian/Litigation Team Member"); and Mr. Henderson ("Outside Legal Counsel"). [Id.]. A footnote also explains that the investigative report was sent directly to Ms. Buckhanan Wilson and Ms. Walker-Steele, and "within a matter of days," was sent to Mr. Henderson, Ms. Hill, and Ms. Perine Beard. [Id.] 5 n.1. The footnote also states that no one else received a copy of the report until after the instant lawsuit was filed. [Id.].
The Court observes that each version of AKA's privilege log has referenced the Bates range of the investigative report, "003297-003370," which is seventy-four pages. [266-2] 2; [266-3] 3; [286-3] 5. The investigative report that was submitted for in camera review is ninety-eight pages. [292-1]. While the report does not contain Bates numbering, because the exhibits comprise twenty-four pages, it appears to the Court that the Bates range included in AKA's privilege logs references the report excluding exhibits.
Although only Ms. Casanova is listed in the "Author" field of the log entry, Ms. Casanova's declaration clarifies that all three Investigation Team members shared duties, including preparing and drafting the investigative report. [286] 2; [286-2] 3, ¶ 7; [286-3] 5. See infra.
On May 21, 2021, Hankins filed a response to AKA's supplemental materials, in which she maintained that the investigative report is not protected by the attorney-client privilege or work-product doctrine. [287]. In compliance with the Court's order [290], AKA filed the report under seal for in camera review. [292].
Legal Standard
"When documents are sought from a nonparty, the usual method of compelling production is via a subpoena under Rule 45." Rosales v. The Placers, Ltd., No. 09 C 1706, 2011 WL 846082, at *1 (N.D. Ill. Mar. 8, 2011) (quoting Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006)); Fed. R. Civ. P. 34(c) ("As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection."). "The limits and breadth of discovery expressed in Rule 26 are applicable to non-party discovery under Rule 45." Breuder v. Bd. of Trs. of Cmty. Coll. Dist. No. 502, No. 15 CV 9323, 2020 WL 4676666, at *3 (N.D. Ill. Aug. 12, 2020) (quoting Buonavolanto v. LG Chem, Ltd., No. 18 C 2802, 2019 WL 8301068, at *2 (N.D. Ill. Mar. 8, 2019)). Rule 26 provides that a party "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P. 26(b)(1).
Attorney-client privilege is governed by Illinois law in a diversity action where the claims in the underlying complaint arise under Illinois law. See Fed. R. Evid. 501; Caremark, Inc. v. Affiliated Comput. Servs., Inc., 192 F.R.D. 263, 265 (N.D. Ill. 2000). "Illinois has adopted the control-group test in the corporate client context, where the party asserting the privilege has the burden of showing that: 1) the communication in question was made by corporate employees 'who are the decisionmakers or who substantially influence corporate decisions;' and 2) that 'the communication originated in a confidence that it would not be disclosed, was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services, and remained confidential.' " The Manitowoc Co. v. Kachmer, No. 14 CV 9271, 2016 WL 2644857, at *2 (N.D. Ill. May 10, 2016) (quoting Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill.2d 103, 59 Ill.Dec. 666, 432 N.E.2d 250, 257 (1982)). "[I]t is the attorney-client privilege, not the duty to disclose, that is the exception [and] the privilege ought to be strictly confined within its narrowest possible limits." Dexia Credit Loc. v. Rogan, 231 F.R.D. 268, 272 (N.D. Ill. 2004) (quoting Waste Mgmt., Inc. v. Int'l Surplus Lines Ins. Co., 144 Ill.2d 178, 161 Ill.Dec. 774, 579 N.E.2d 322, 327 (1991)).
Rule 26(b)(3)(A), which codifies the work-product doctrine, provides that "a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." Fed. R. Civ. P. 26(b)(3)(A). The work-product doctrine "protects documents prepared 'in anticipation of litigation for the purpose of analyzing and preparing a client's case.' " Baxter Int'l, Inc. v. AXA Versicherung, 320 F.R.D. 158, 163 (N.D. Ill. 2017) (quoting Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010)). "As with the attorney-client privilege, the party asserting the work product doctrine bears the burden of establishing that the doctrine applies to each document as to which it is asserted." Pogorzelska v. VanderCook Coll. of Music, No. 19 C 5683, 2021 WL 2660268, at *3 (N.D. Ill. June 29, 2021) (internal quotations and citation omitted).
Discussion
AKA resists production of its investigative report on attorney-client privilege and work-product grounds. Hankins argues that neither protection applies. The Court addresses each claim in turn.
At the outset of its opposition brief, AKA states that Hankins's motion should be denied because the investigative report is privileged and "marginally relevant." [279] 1. AKA does not raise any issue with the report's relevance elsewhere, and the Court declines to address it, as it finds there is no real dispute regarding the report's relevance to the claims and defenses in this case.
I. Attorney-Client Privilege
Hankins lodges two objections to AKA's claim of attorney-client privilege over the investigative report. First, Hankins argues that the report is not covered by the attorney-client privilege because it was not prepared for the purpose of obtaining legal advice. [265] 8. Rather, Hankins claims that the report was prepared pursuant to AKA's policies and procedures, which require it to investigate every alleged incident of hazing and to prepare a report memorializing the results. [Id.] 9-11. Second, Hankins argues that the sorority members who conducted the investigation and prepared the investigative report were not control group members, as is required under Illinois law. [287] 3-4. AKA disagrees with both contentions. It maintains that the report was prepared for the purpose of obtaining legal advice and that the investigators were members of the control group. [279] 4.
As Hankins and AKA agree, Illinois law governs the application of the attorney-client privilege in this diversity case. Fed. R. Evid. 501. Illinois has adopted the control group test in the corporate context to "determine which communications between employees and agents of a corporation and their legal counsel are privileged." McChristian v. Brink, 408 Ill.Dec. 206, 65 N.E.3d 428, 433 (Ill. App. Ct. 2016) (citing Consolidation Coal, 59 Ill.Dec. 666, 432 N.E.2d 250). Under the control group test, "an employee whose advisory role to top management in a particular area is such that a decision would not normally be made without his advice or opinion, and whose opinion in fact forms the basis of any final decision by those with actual authority, is properly within the control group." Consolidation Coal, 59 Ill.Dec. 666, 432 N.E.2d at 258. "However, the individuals upon whom he may rely for supplying information are not members of the control group." Id. "Thus, if an employee of the status described is consulted for the purpose of determining what legal action the corporation will pursue, his communication is protected from disclosure." Id.
The Court begins (and ends) with the control group determination. According to Ms. Buckhanan Wilson's declarations, she created a five-person "Litigation Team" during her tenure as Supreme Basileus to help advise her on "extraordinary legal matters," including "[t]he anticipated litigation involving Soror Jordan Hankins." [266-1] 4, ¶ 14; [286-1] 1, ¶ 2. The "Litigation Team" included: Mr. Henderson, the sorority's outside litigation counsel; Ms. Hill, an attorney who served as a "Legal Resource" by providing "advice, guidance, and direction on matters of legal significance to the Sorority"; Ms. Perine Beard, the International Parliamentarian and "senior advisor" to Ms. Buckhanan Wilson; Ms. Howell, Executive Director and Soror; and Ms. Buckhanan Wilson. [266-1] 4, ¶ 15; [286-1] 3, ¶ 4. Within days of Jordan's death, Ms. Buckhanan Wilson convened a conference call with the Litigation Team. [266-1] 4, ¶ 14. Around the same time, Ms. Buckhanan Wilson appointed an "Investigation Team," which was chaired by Soror Giselé Casanova, Chairperson of the International Standards Committee, which oversaw the sorority's procedures for investigations. [Id.] 4, ¶¶ 16-17; [286-2] 1, ¶¶ 3, 5. Sorors Mari Swayne and Sarah Barber were also appointed to the Investigation Team. [286-2] 3, ¶ 6. According to Ms. Casanova's declaration, the three Investigation Team members "shared duties," including conducting interviews of sorority and non-sorority members about the hazing allegations, analyzing what happened, developing conclusions, making recommendations, and drafting the investigative report. [Id.] 3, ¶ 7.
AKA has not met its burden to show that all members of the Investigation Team are members of the corporate control group. To begin, it is unclear whether each of the Investigation Team members provided her advice or opinions forming the basis of decisions made by those with authority. Consolidation Coal, 59 Ill.Dec. 666, 432 N.E.2d at 258. While AKA claims that "[t]he facts establish that President Wilson created the Investigation Team to perform an advisory function," statements in Ms. Buckhanan Wilson's initial declaration indicate that the Investigation Team's intended function was fact finding. [279] 5. For example, Ms. Buckhanan's declaration states, "At or around the time of the call with the Litigation Team, and in order to obtain the facts regarding the passing of Soror Hankins and the allegations raised by Northwestern, I personally appointed an Investigation Team, which was chaired by Soror Giselé Casanova." [266-1] 4, ¶ 16. Her declaration also states, "The initial role of Soror Casanova was to obtain information that would be given to me and the Litigation Team to determine next steps." [Id.] 6 ¶ 26. And while labels are not dispositive, the Court notes that the investigative report is termed "Fact Finding Report" and "Fact Finding Investigation Final Report" on its face. [292-1] 1-2. The Court recognizes that, according to Ms. Casanova's declaration, the Investigation Team members "engag[ed] in an analysis about what happened; develop[ed] conclusions; [and] ma[de] recommendations." [286-2] 3, ¶ 7. And the investigative report includes sections for "analysis; conclusions; and, recommendations," as Ms. Casanova's declaration also states. [Id.] 3, ¶ 8. The Court's in camera review of the 98-page report, however, revealed that those sections comprise less than four pages, and even those pages include factual recitations and offer no advice or opinions on legal strategy. [292-1] 14-17.
Even assuming that the Investigation Team members provided advice and opinions in this instance, AKA has made no showing that each of the three individuals occupied an "advisory role to top management in a particular area . . . such that a decision would not normally be made without h[er] advice or opinion." Consolidation Coal, 59 Ill.Dec. 666, 432 N.E.2d at 258. We know that Ms. Buckhanan Wilson appointed Ms. Casanova to serve as the Chairperson of the International Standards Committee overseeing the procedures for investigations in or around July 2014, and that she was represented to be a "high-ranking advisor" within the sorority. [279] 5; [286-2] 1, ¶ 3. Indeed, at the motion hearing, AKA's counsel stated that Ms. Buckhanan Wilson "hand-selected Giselé Casanova to do the investigation, who was her top person worldwide to be involved in something like this." But the only title provided for the other Investigation Team members, Ms. Swayne and Ms. Barber, is "Soror." [286-2] 3, ¶ 6. When asked to provide more information regarding Swayne's and Barber's roles within the sorority during the motion hearing, AKA's counsel reiterated that Ms. Casanova was a "high-ranking official" and stated that Ms. Swayne and Ms. Barber "were there to share in the workload because the workload was too significant for one person to do." Counsel further explained that, while he did not want to underemphasize Swayne and Barber's significance, "the person in charge was Giselé Casanova, and then Mari Swayne and Sarah Barber were there to, you know, support her and do the same work. But ultimately Giselé Casanova was the person that President Wilson was looking to for information."
AKA has not shown that either Ms. Swayne or Ms. Barber was a top adviser such that the sorority would not normally make a decision without her advice or opinion. See Consolidation Coal, 59 Ill.Dec. 666, 432 N.E.2d at 258. Rather, the record suggests that any other two sorors could have filled Ms. Swayne and Ms. Barber's roles. AKA points to Canal Barge Co. v. Commonwealth Edison Co., No. 98 C 0509, 2001 WL 968727, at *2 (N.D. Ill. Aug. 24, 2001) to support its claim that all three Investigation Team members were control group members. [279] 6. AKA has not made the type of showing present in Canal Barge, which included an unequivocal assertion that "no decision was made regarding any of Canal Barge's claims without considering [the employee in question]'s opinion," as well as an assertion that the employee "frequently communicated and met with ComEd's attorneys to help determine the strategy to be used by ComEd in responding to the claims made by Canal Barge." 2001 WL 968727, at *2. AKA has not carried its burden to show that all Investigation Team members were part of the control group. Because this membership in the control group is required for the attorney-client privilege to apply, the Court need not address any additional requirements. The Court holds that the investigative report is not protected by the attorney-client privilege.
II. Work Product
AKA also claims that the investigative report is protected as work product. Hankins argues that there are two "significant problems" with AKA's work-product claim. [265] 12. Hankins first argues that the report was not created in anticipation of litigation, but rather in AKA's ordinary course of business pursuant to its governing documents, which require that the sorority investigate any allegations of hazing. [Id.] 13. Hankins also argues that the report cannot be work-product protected because it was not prepared by an attorney or attorney's agent. [Id.] 11-13.
AKA acknowledges that it must show that the report was prepared in anticipation of litigation in order to invoke work-product protection. [279] 8. It claims that due to the serious and public nature of the underlying events, it "reasonably and correctly anticipated that litigation would arise" and took "unprecedented action" that deviated from its ordinary practices. [Id.] 7-9. AKA also argues that Hankins's issue with the report's lack of attorney authorship "ignores the reality of litigation in the modern corporate setting," in which corporate clients seek to use their employee resources to defray litigation costs, and that this does not alter "the work-product nature of the document." [Id.] 8-9.
The threshold determination in any case involving a work-product claim—and the heart of the dispute before this Court—is whether the document at issue was prepared in anticipation of litigation. Binks Mfg. Co. v. Nat'l Presto Indus., Inc., 709 F.2d 1109, 1118 (7th Cir. 1983). The Seventh Circuit has explained that the test for "anticipation of litigation" is "whether, in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation." Id. at 1118-19 (citing 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2024 (3d ed. 2021)) (emphasis in Binks); Logan v. Com. Union Ins. Co., 96 F.3d 971, 976-77 (7th Cir. 1996). Documents prepared for other reasons, such as those created in the ordinary course of business, do not rise to the status of work product. Caremark, Inc., v. Affiliated Computer Services, Inc., 195 F.R.D. 610, 614 (N.D.Ill. 2000); Resurrection Healthcare & Factory Mut. Ins. Co. v. GE Health Care, No. 07 C 5980, 2009 WL 691286, at *1 (N.D. Ill. Mar. 16, 2009). Materials prepared in the ordinary course of business—"even if prepared at a time when litigation was reasonably anticipated" or that "may have the incidental effect of being helpful in litigation"—are not protected under the work product doctrine. Evans v. City of Chi., 231 F.R.D. 302, 310 (N.D. Ill. 2005) (citation omitted); RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 217 (N.D. Ill. 2013) (citations omitted).
Work-product protection does not come into play "merely because there is a remote prospect of future litigation." Binks, 709 F.2d at 1118 (quoting Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 604 (8th Cir. 1977)); Lewis v. Keen Transp., Inc., No. 09 C 3912, 2011 WL 814860, at *3 (N.D. Ill. Feb. 28, 2011) ("A document created when litigation is only 'in the air,' for example, is not work product.") (citation omitted). "The mere fact that litigation does eventually ensue does not, by itself, cloak materials prepared by an attorney with the protection of the work product privilege; the privilege is not that broad." Binks, 709 F.2d at 1118; Logan, 96 F.3d at 976; Club Gene & Georgetti, LP v. XL Ins. Am., Inc., No. 20 C 652, 2021 WL 1239197, at *4 (N.D. Ill. Apr. 2, 2021) ("The fact that litigation eventually ensues or that a party has retained an attorney, initiated investigations, or engaged in negotiations over a claim, is insufficient to dispositively establish anticipation of litigation.") (quoting Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84, 87 (N.D. Ill. 1992)).
"[B]ecause litigation can be anticipated at the time almost any incident occurs, a substantial and significant threat of litigation is required before a discovery opponent's anticipation will be considered a reasonable and justifiable motivation for production of a document." Club Gene & Georgetti, 2021 WL 1239197, at *4 (quoting Allendale, 145 F.R.D. at 87); Caremark, 195 F.R.D. at 614 (document "must come into existence because of the litigation or some articulable claim has arisen that is likely to lead to litigation") (citing Binks, 709 F.2d at 1120). While the "precise definition of this level of 'threat' is elusive, it is perhaps best described as requiring a showing of 'objective facts establishing an identifiable resolve to litigate.' " Club Gene & Georgetti, 2021 WL 1239197, at *4 (quoting Allendale, 145 F.R.D. at 87).
"Documents that are not primarily legal in nature are also not protected under the work-product doctrine." Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 WL 2118799, at *8 (N.D. Ill. May 21, 2014); Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577, 582 (7th Cir. 1981) ("Only where the document is primarily concerned with legal assistance does it come within [the attorney-client or work-product] privileges; technical information is otherwise discoverable."); In re Air Crash Disaster at Sioux City, Iowa on July 19, 1989, 133 F.R.D. 515, 519 (N.D. Ill. 1990) (work product includes "subject matter that relates to the preparation, strategy, and appraisal of the strengths and weaknesses of an action, or to the activities of the attorneys involved, rather than to the underlying evidence") (citation omitted). While the document "need not be prepared solely for the purpose of litigation to merit protection," the "primary motivating purpose" behind the document's creation "must be to aid in possible future litigation." Baxter, 320 F.R.D. at 163 (citing Heriot v. Byrne, 257 F.R.D. 645, 663-64 (N.D. Ill. 2009)); Binks, 709 F.2d at 1119. Documents "that would have been created irrespective of litigation" do not fall under the protection of the work-product doctrine. Baxter, 320 F.R.D. at 163 (quoting Caremark, 195 F.R.D. at 614).
Having reviewed the investigative report and the factual context in which it was created, the Court finds that AKA has not established that the investigative report was prepared in anticipation of litigation.
AKA claims that litigation was "objectively imminent" at the time it created the investigative report. [279] 1. In support, it points to the "extraordinary event" of Jordan's death, as well as scrutiny from the media and Northwestern University in the days following. [Id.] 1, 9. Specifically, Ms. Buckhanan Wilson's first declaration states that, less than one week after learning of Jordan's passing, Ms. Buckhanan Wilson also learned that the sorority had been contacted by the assistant director of Northwestern University's Office of Student Conduct regarding reports of alleged hazing at AKA's Gamma Chi Chapter. [266-1] 3-4, ¶¶ 11-12. Ms. Buckhanan Wilson's declaration further states that the combination of media coverage surrounding Jordan's death and the fact that the sorority had been contacted by Northwestern just days later "made it plain that the Sorority could be the target of a lawsuit." [Id.] 4, ¶ 13.
This Court does not doubt that the combination of media coverage and correspondence from Northwestern following Jordan's death may have raised concerns about the possibility of future litigation. That the sorority "could be the target of a lawsuit," however, falls short of an "identifiable resolve to litigate." Club Gene & Georgetti, 2021 WL 1239197, at *4 (quoting Allendale, 145 F.R.D. at 87); see also Binks, 709 F.2d at 1119 ("The fact that a defendant anticipates the contingency of litigation resulting from an accident or event does not automatically qualify an 'in house' report as work product. . . .") (citation omitted). Jordan Hankins died by suicide on January 9, 2017. Her mother initiated this lawsuit in federal court on January 8, 2019. The Investigation Team began interviews on February 10, 2017, and the investigative report was provided to Ms. Buckhanan Wilson on March 3, 2017—almost two years before this lawsuit was filed. [292-1] 6; [286-2] 3, ¶ 9; [286-3] 5. AKA has cited no objective facts demonstrating "an identifiable resolve to litigate" before that date. Resurrection Healthcare, 2009 WL 691286, at *1-2. Instead, at the motion hearing, AKA's counsel stated that "the sorority didn't know who was going to file suit, but they certainly had an expectation that a suit was going to be filed." That Northwestern's Assistant Director of the Office of Student Conduct arranged a meeting to discuss reports of alleged hazing does not amount to a resolve to litigate, [266-1] 17-19, nor has AKA identified any communications from Jordan's family expressing a resolve to litigate at that time. While AKA may have believed that litigation could materialize, and even taken steps to prepare for potential litigation, it has not identified a cognizable claim. Although Ms. Buckhanan Wilson had convened the Litigation Team, and outside counsel (Mr. Henderson) provided legal advice prior to the creation of the investigative report, these facts are "insufficient to dispositively establish anticipation of litigation." Gene & Georgetti, 2021 WL 1239197, at *4 (quoting Allendale, 145 F.R.D. at 87).
Even if litigation had been imminent at the time the investigative report was created, AKA has not established that its internal investigation of the hazing allegations was performed for the purpose of litigation, and the report would not have been created otherwise. Ms. Buckhanan Wilson claims in her declarations that the investigative report was prepared to aid in possible future litigation. For example, Ms. Buckhanan Wilson's first declaration states that among the purposes of the investigation were "determin[ing] the potential legal exposure of the Sorority" and "determin[ing] what steps should be taken and strategies developed in anticipation of litigation." [266-1] 5, ¶ 21. She further states, "The investigation, in general, and the Investigative Report, in particular, were discussed with the Litigation Team to determine next steps, including: whether and how to position the Sorority for anticipated litigation, including whether there was any connection between the passing of Soror Hankins and alleged hazing by one or more of our members; whether and how our Corporate Office should interact with our insurance company, including for defense and coverage issues; to help identify Sorority chapters and members who were entitled to insurance coverage, including the potential appointment of an attorney to represent them; to determine the extent to which the Sorority needed to further its investigation; and, to help identify and discipline Sorority members, if any, who may have violated our rules which strictly prohibit hazing." [Id.] 6, ¶ 30.
But the investigative report tells a different story. While the report may have had the ancillary benefit of assisting in litigation, the Court's in camera review revealed that the investigation was undertaken, and the report created, to identify and address alleged violations of the sorority's anti-hazing policy. The Court's review showed the 98-page report to be comprised almost entirely of factual information. It contains fifty-five pages of essentially verbatim witness statements; twenty-five pages of exhibits, including an exhibit cover page, three letters (two of which were sent as emails), text messages, and one photo; and fourteen pages containing miscellaneous sections, including the cover page, table of contents, placeholder for an appointment letter, background, issues/allegations, interview schedule, facts, rules excerpted from sorority policy documents, and an index of witnesses. The remaining four pages contain the investigators' "analysis," "conclusions," and "recommendations." Even these four pages contain no references to litigation or legal strategy. Rather, the "analysis," "conclusions," and "recommendations" focus solely on the identification and discipline of sorority members who had violated the sorority's anti-hazing policy by participating in "pre-pledging" and "post-pledging" activities, including "unauthorized meetings." [292-1] 12-17. The "recommendations" put forth in the report involve suspending, expelling, or refraining from action against individual sorority members and the Gamma Chi Chapter. The report "contains no legal advice and is not of a legal nature." Lewis, 2011 WL 814860, at *4; Gregorio v. Yellow Transp., Inc., No. 08 C 6257, 2009 WL 3756493, at *2 (N.D. Ill. Nov. 5, 2009). It contains no assessment, or even mention, of legal exposure, legal strategy, or litigation. In re Air Crash Disaster, 133 F.R.D. at 519 (work product includes "subject matter that relates to the preparation, strategy, and appraisal of the strengths and weaknesses of an action, or to the activities of the attorneys involved, rather than to the underlying evidence") (citation omitted). While the information obtained from the interviews may have had "the incidental effect of being helpful in litigation," RBS Citizens, 291 F.R.D. at 217 (citations omitted), that does not convert the report, which was concerned with violations of sorority policies, into one concerned with litigation, as is required for work-product protection to apply. The report does not reflect a primary motivating purpose of aiding in litigation. Binks, 709 F.2d at 1119 (citation omitted). Rather, the driving force behind the report was, simply put, to get to the bottom of the hazing allegations.
AKA maintains that the investigative report was not created as part of its ordinary course of business. To begin, Ms. Buckhanan Wilson's initial declaration states that investigations were supposed to be done at the regional level. [266-1] 3, ¶ 8. At the motion hearing, AKA's counsel further stated that "99.9 percent of the time, if not more than that, investigations are done at the regional level." Even so, "it was the exception and not the rule for a regional director to order an investigation." [266-1] 3, ¶ 9. In this case, Ms. Buckhanan Wilson appointed the Investigation Team, which marked "an extraordinary occurrence" driven in large part because "the investigation involved a death." [Id.] 5, ¶¶ 20, 25. AKA claims that "[w]hile allegations of hazing may be routinely investigated, this investigation did not follow that pattern because it involved a death and potential legal action." [279] 8.
Despite AKA's contention that the investigation marked a stark departure from its ordinary practices, the Investigation Team followed established sorority rules in preparing the report, and those rules contemplated investigations into hazing allegations. Ms. Casanova states in her declaration that the team followed sorority policies in conducting the investigation. See [286-2] 3, ¶ 7 ("The three Investigation Team members shared duties, which included, among other things . . . disseminating and following the Sorority's rules for investigations."). And the report confirms that the investigators did, in fact, rely on the sorority's rules and procedures for investigations, including utilizing an "interview script" and adopting a specified "standard of proof" from AKA's November 2014 investigation guide. [292-1] 12. Some of the interview statements also confirm that the team followed the sorority's policies for investigations. See, e.g., [292-1] 37 ("[S]he was informed of Alpha Kappa Alpha's timeline for investigations, the I-Team's timeline to send their report to the Regional Director and Supreme Basileus and the timeline that the Regional Director has for sending her response to the chapter."). And the report's organization and content mirrors that of the sorority's "Fact-Finding Summary Report Form." [270].
Based on AKA's policy documents, as well as the representations in its opposition brief, during the motion hearing, and in Ms. Buckhanan Wilson's declarations, it is unclear what degree of discretion, if any, was afforded to sorority leadership in investigating hazing allegations. The "Rules" section of the investigative report, which contains excerpts from AKA's Investigation Guide, states that Regional Directors "may use an investigation to resolve a variety of issues" and "possess the inherent authority to request investigations when necessary and to correct problems within their region." [292-1] 12. The rules also contain an excerpt regarding the sorority's hazing policy, which states that, in 1999, the sorority "reaffirmed its total opposition to hazing with the publication of a tougher anti-hazing policy and the implementation of new procedures to identify, investigate and punish incidents." [Id.] 13. The sorority's anti-hazing policy recognizes that "[h]azing is harmful and can result in the death of a person," and thus establishes "a standard, uniform and efficient process to address hazing activities . . . and to resolve complaints regarding hazing." [267] 2. Additionally, a policy excerpt regarding "Alpha Kappa Alpha Investigation Team (AKA I-Team) Visits" states that "[t]he AKA I-Team shall conduct prompt, fair, and objective fact-finding investigations and interviews when allegations of policy and procedural problems arise within the region, or if there is a violation of Alpha Kappa Alpha Sorority, Incorporated policies." [266-5] 2. During the motion hearing, however, AKA's counsel explained that "there's nothing that says that every investigation will be [carried out]. That's probably a judgment call that is made on a case-to-case basis." The Court need not speculate as to whether investigations were "the exception and not the rule," as Ms. Buckhanan Wilson's declaration represents, [266-1] 3, ¶ 9, or whether hazing allegations are in fact "routinely investigated," as AKA's opposition brief states "may" occur, [279] 8, because the investigative report and the investigator who led the charge on preparing it have shown that the sorority followed its established procedures for hazing investigations in conducting this investigation. See infra. Moreover, regardless of whether AKA typically followed its policies in conducting (or not conducting) other investigations into hazing allegations or deviated from its policies in some respects in conducting this investigation, the content of the report shows that its purpose was to identify and rectify internal policy violations and thus leads the Court to conclude that it "would have been created irrespective of litigation." Caremark, 195 F.R.D. at 614.
The Court's determination that the investigative report is not subject to the qualified work product immunity provided by Rule 26(b)(3) hinges on the answer to two questions. First is whether "the subject matter of the document concerns preparation or strategy, or the appraisal of the strengths or weaknesses of [AKA]'s case, or the activities of the attorneys in preparing their case, or is at least 'primarily concerned with legal assistance,' and not simply underlying evidence." In re Air Crash Disaster, 133 F.R.D. at 520; Loctite Corp., 667 F.2d at 582 ("Only where the document is primarily concerned with legal assistance" is it work product.). Based on the Court's review of the report, the answer is no. Second is whether the report "would have been prepared even if litigation was never filed or expected." RBS Citizens, 291 F.R.D. at 219 (citation omitted); Caremark, 195 F.R.D. at 614. Based on the content of the report, the Court concludes the answer is yes.
Having concluded that AKA has not met its burden to show that the investigative report was prepared in anticipation of litigation, the Court need not address Hankins's argument that the report is not covered by the work-product doctrine because it was not prepared by an attorney or attorney's agent.
The Court notes that neither Hankins nor AKA even addresses the preliminary question of whether AKA, as a non-party to this litigation, can assert work-product protection, given Rule 26(b)(3)'s application to "another party or its representative." Fed. R. Civ. P. 26(b)(3). Courts in this district have generally held that the plain language of the rule limits its protections to a party (or a party's representative) to the litigation. See, e.g., Castro v. Sanofi Pasteur Inc., No. 13 C 2086, 2013 WL 3771493, at *4 (N.D. Ill. July 18, 2013) ("The weight of authority on this question, though not controlling, decisively reflects the view that, in limiting its scope to materials prepared 'by or for another party,' Rule 26(b)(3) means what it says."); LG Elecs., Inc. v. Motorola, Inc., No. 10 CV 3179, 2010 WL 4513722, at *3 (N.D. Ill. Nov. 2, 2010) (collecting cases holding that Rule 26(b)(3)'s protections are limited "to one who is a party (or a party's representative) to the litigation in which discovery is sought"); Cook v. City of Chi., No. 06 C 5930, 2010 WL 331737, at *1 (N.D. Ill. Jan. 26, 2010) ("Rule 26 of the Federal Rules of Civil Procedure and caselaw applying this Rule are clear: a non-party may not assert the work product doctrine to protect its files or documents."); see also 8 Wright, Miller & Marcus, supra ("[T]he protection extends only to documents obtained by 'another party' or its representative and in context this rather clearly means another party to the litigation in which discovery is being attempted. Documents prepared for one who is not a party to the present suit are wholly unprotected by Rule 26(b)(3) even though the person may be a party to a closely related lawsuit in which he will be disadvantaged if he must disclose in the present suit."). Federal courts are not uniform, however. Some courts, including federal courts in Illinois (and this district), have held that a non-party was entitled to invoke work-product protection. See, e.g., Timmermann's Ranch & Saddle Shop, Inc. v. Pace, No. 11 C 1509, 2016 WL 1181792, at *2 (N.D. Ill. Mar. 28, 2016); Hale v. State Farm Mut. Auto. Ins. Co., 12-cv-660, 2014 WL 6854416, at *4 (S.D. Ill. Dec. 5, 2014) (finding no basis to reject non-party's work product claim based on theory that Rule 26(b) does not apply to non-parties); In re Student Fin. Corp., No. 02-11620, 2006 WL 3484387, at *10 (E.D. Pa. Nov. 29, 2006) ("The court disagrees with those courts that have assumed that Rule 26(b) forbids district courts from extending work product protection to third parties. Although Rule 26(b)(3) was intended to set out a uniform work product provision for the federal courts, nothing in the text of the rule or its history, or in the relevant advisory committee notes, suggests that is was intended to foreclose the application of the attorney work product privilege outside its terms in appropriate cases."); Bell v. Pension Comm. of ATH Holding Co., No. 1:15-cv-2062, 2018 WL 7350951, at *8-9 (S.D. Ind. Aug. 16, 2018) (finding that extending work-product protection to a non-party served the purposes of the doctrine). Because AKA has not shown that the investigative report was prepared in anticipation of litigation, the Court need not decide this issue.
Conclusion
For the foregoing reasons, Plaintiff's motion to compel [264] is granted. AKA shall produce its investigative report within 7 days of this Order.