Opinion
Case No. 98 C 5596.
June 25, 2003.
ORDER
The applicable standard for reconsideration of a magistrate judge's non-dispositive order is whether the magistrate's order is "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a). On December 17,2001, Magistrate Judge Levin granted the plaintiff's motion for a protective order with respect to discovery related to meetings between Attorney Judd Miner and the plaintiffs in which Miner advised the plaintiffs regarding their racial discrimination claims. In so ruling, Magistrate Judge Levin relied on the general proposition that only a client may waive the attorney-client privilege. Having reviewed caselaw from this circuit, however, it appears that the plaintiffs may have waived that privilege with respect to meetings with Miner in 1996 and 1997. By submitting Miner's affidavit at the summary judgment stage in order to establish when plaintiffs received notice that they had racial discrimination claims, plaintiffs themselves may have waived any attorney-client privilege with respect to those meetings. Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1175 n. 1 (7th Cir. 1995) (recognizing that the attorney-client privilege is generally waived when the client asserts claims or defenses that put his attorney's advice at issue in the litigation); Atlantic Investment Management. LLC v. Millennium Fund I, Ltd., 212 F.R.D. 395, 399 (N.D. Ill. 2002); Pyramid Controls, Inc. v. Siemens Indust. Automations, Inc., 176 F.R.D. 269, 272 (N.D. Ill. 1997); A. O. Smith Corp. v. Lewis, Overbeck Furman, No. 90 C 5160, 1991 WL 192200, *4 (N.D. Ill. Sept. 23, 1991). However, the court concludes that, while it appears that Magistrate Judge Levin's ruling with respect to the waiver of the attorney-client privilege was at least arguably incorrect, that ruling need not be reversed. The only reason given by the City for the inquiry into the meeting is to determine when plaintiffs in this case had notice of their claims. Because this court has already ruled that plaintiffs have alleged a "continuing violation" of their rights, the exact date that they had notice of their claims is no longer at issue in this case. For that reason, the court finds it inappropriate to allow the City to take discovery relating solely to an already-foreclosed defense. Therefore, Magistrate Judge Levin's ruling stands.
With respect to his ruling denying defendant's motion to bar Dr. Hough from testifying, the court finds that Magistrate Judge Levin properly decided the issue. The court agrees with Magistrate Judge Levin's conclusion that any alleged prejudice felt by the City in receiving an unexpected expert report fifteen days after the date agreed upon by the parties for exchange of expert reports is outweighed by the "very harsh sanction of barring an expert on a very substantive issue in an important case." (J. Levin, 10/10/01 Tr. at 22.) Further, the court rejects the City's argument that Dr. Hough should be barred because his testimony would be duplicative of that of the plaintiffs' other expert, Dr. Cranny. Based on the representations made by plaintiffs' counsel during oral argument, there will be no duplication. While both experts may be testifying to issues relating to industrial and organizational psychology, Dr. Hough is the only expert addressing personality and psychological testing. In light of this, the court affirms Magistrate Judge Levin's 10/10/01 order denying defendant's motion to bar Dr. Hough from testifying.