*1 Before the Court are two Motions to Quash from Defendants Joliet Park District (“Joliet”) [Doc. No. 24] and Dominic Egizio (“Egizio”) [Doc. No. 34]. Both Defendants seek to quash portions of Plaintiff Jeanetta Matichak's (“Plaintiff”) August 15, 2016 subpoena duces tecum, sent to the third-party James Sotos, Esq. and the Sotos Law Firm, P.C. (collectively, “Sotos”); the law firm retained to investigate the Plaintiff's allegations of sexual harassment. Joliet's motion, and accompanying privilege log, seeks to quash production of the materials enumerated in subpoena numbers 1, 2, and 4; while Egizio's motion and privilege log seeks to quash production of the materials enumerated in subpoena number 3(a). Plaintiff has filed responses [Doc. No. 35 and 42] with exhibits, to which Joliet [Doc. No. 39] and Egizio have replied [Doc. No. 43]. Sotos has not separately moved to quash the subpoena. For the reasons that follow, Joliet's Motion to Quash is GRANTED IN PART, and Egizio's Motion to Quash is DENIED.

This case concerns alleged sexual harassment between a superior and his subordinate. The Plaintiff alleges she was continually harassed by the executive director of the Joliet Board, Egizio, during the course of her employment as a part-time fitness instructor from 2011, until her departure on FMLA-leave in August of 2015. While the Plaintiff alleges that rumors of the harassment circulated among Joliet staff, Joliet maintains they were unaware of the harassment until August 18, 2015, when Joliet received from Plaintiff's counsel a letter detailing the alleged harassment. That letter spurned Joliet to immediately place Egizio on administrative leave, and retain Sotos to conduct an investigation and provide legal advice to Joliet. Sotos' investigation began the following day and involved reviewing approximately 20,000 miscellaneous documents, and interviewing 40 current and former Joliet employees. Each interviewee was provided an “Upjohn warning,” which advised the interviewee that Sotos was retained as Joliet's attorney alone. Further, on August 20, 2015 Egizio retained his own private counsel, Marc Siegel (“Siegel”) who was present during Egizio's interview with Sotos.

Sotos' investigation concluded on September 25, 2015 and produced a host of materials, including those materials that Joliet and Egizio now move to quash. The investigation determined Egizio and the Plaintiff maintained a three-year consensual affair, which Egizio had actively concealed from the Joliet Board. As a result of the investigation findings, Egizio resigned from his directorship in October of 2015.

Soon thereafter, on December 30, 2015, the Plaintiff first took legal action; alleging substantially the same claims as the instant lawsuit in a charge with the EEOC. Joliet responded to Plaintiff's EEOC charge by filing a position statement denying the entirety of the Plaintiff's allegations, and stating specifically “Joliet's [...] thorough investigation into the [Plaintiff's] claim[,] confirms that there is no evidence to support her allegations of discrimination in any form.” [Doc. No. 35-1 at 2, Joliet EEOC Position Statement]. Joliet likewise attached to their position statement the affidavits of four Joliet Board members. The affidavits reiterated that the Joliet Board had conducted an internal investigation, the results of which showed the Plaintiff and Egizio had both concealed an ongoing consensual affair.

*2 Plaintiff filed her instant lawsuit on June 3, 2016 and soon thereafter, served upon Sotos the August 15, 2016 third-party subpoena duces tecum that is the subject of the instant dispute. In relevant part, the Sotos subpoena sought, for a September 2, 2016 production date:

Joliet first moved to quash the Sotos subpoena on August 29, 2016, arguing the materials contained in subpoena numbers 1, 2, and 4 are protected by both attorney-client privilege and the work product doctrine. In its accompanying privilege log, Joliet specifically lists as protected: the transcript of Egizio's interview (Joliet Privilege Log No. 3), Sotos' typed-notes from each interview with current and former Joliet employees (No(s). 4-42), and the 45-page written report (No. 1), provided to the Joliet Board along with its corresponding 18-page summary (No. 2). The parties appeared for a motion hearing before the Court on September 1, 2016 and the Court set a response and reply date of September 22, 2016 and September 29, 2016, respectively.

The parties and Sotos continued to attempt to reach agreement about portions of the Plaintiff's subpoena request. Specifically, on September 2, 2016, the parties and Sotos agreed, via email, that Sotos will produce the unopposed materials contained in subpoena numbers 3 and 5, by September 15, 2016. Egizio also requested that Sotos temporarily withhold its production of subpoena number 3(a), as Egizio would move to quash it on grounds that it would require disclosure of a confidential letter sent from Egizio's former counsel Siegel, to Sotos. Sotos obliged and withheld this letter, disclosing the other materials requested in subpoena numbers 3 and 5.

Egizio subsequently filed its Motion to Quash subpoena number 3(a) on September 21, 2016. Much like Joliet, Egizio argued that the materials in subpoena number 3(a) are protected by attorney-client privilege and the work product doctrine. In its accompanying privilege log, Egizio specifically lists as protected: a confidential letter sent from Siegel to Sotos on August 24, 2015 (Egizio Privilege Log No. 1) and what appears to be the same 45-page report to the Joliet Board (No. 2).[1]

Turning to the substance of Joliet's Motion to Quash, Joliet argues that the entirety of the Sotos investigation, and any resulting materials, are protected by the attorney-client privilege because Sotos was retained primarily to provide legal services. The Court agrees with Joliet.

*3 The attorney-client privilege is the oldest of the recognized privileges for confidential communications known to the common law. Jaffee v. Redmond, 518 U.S. 1, 11 (1996); citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Privilege protects confidential communications made by a client to his lawyer in order to obtain legal advice. United States v. Leonard–Allen, 739 F.3d 948, 952 (7th Cir. 2013); Rehling v. City of Chicago, 207 F.3d 1009, 1019 (7th Cir. 2000). Furthermore, the privilege extends to factual investigations made by the attorney in order to provide legal advice to the client, and any factual statements made by the employee to the attorney pursuant to such an investigation are privileged. Babych v. Psychiatric Sols., Inc., 271 F.R.D. 603, 610 (N.D. Ill. 2010) citing Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618–19 (7th Cir. 2010). This is because the privilege protects “not only the giving of professional advice to those who can act on it[,] but also the giving of information to the lawyer to enable him to give sound and informed advice.” Id., citing Upjohn, 449 U.S. at 390. The privilege belongs to the client, although an attorney may assert the privilege on the client's behalf. Id., citing Sandra T.E., 600 F.3d at 618. However, because the privilege withholds relevant information from the fact-finder, it is construed narrowly. U.S. v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997).

The Court believes the materials generated from the Sotos investigation are protected because it is clear that the Sotos investigation was a prerequisite for Sotos to provide legal advice. Although neither party has provided the Joliet-Sotos engagement letter, which could definitively show why Sotos was retained; Joliet directly states Sotos was retained to both investigate the Plaintiff's allegations, and provide legal services. Likewise, prior to each interview, Sotos gave every interviewee an “Upjohn warning,” notifying the interviewee that Sotos was retained to act as Joliet's attorney. Finally, much like the investigation undertaken in Sandra T.E., the Sotos investigation culminated its findings in a written analytical report, which was provided to the Joliet Board. Therefore, as Sotos was retained to serve in a legal capacity, the investigation and any materials generated therefrom are broadly protected by the attorney-client privilege, absent a waiver.

Against this, Plaintiff raises three separate arguments. First, Plaintiff argues the notes that Sotos generated from the Plaintiff's interview (Joliet Privilege Log No. 15) should still be disclosed pursuant to Federal Rule of Civil Procedure 26(b)(3)(C). The rule permits “[a]ny party [...] may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter.” F.R.Civ.P 26(b)(3)(C). The rule defines a previous statement, in relevant part, as: “[...] (ii) a contemporaneous stenographic, mechanical, electrical, or other recording—or a transcription of it—that recites substantially verbatim the person's oral statement.” F.R.Civ.P 26(b)(3)(C)(ii) (emphasis added). Plaintiff's argument is ineffective as the Court believes the notes generated from Sotos' interview are not the Plaintiff's substantially verbatim statements. Were these notes a substantially verbatim statement, which the rule contemplates for disclosure, the length of the document would not be a meager 16 pages, but would instead be similar in length to Egizio's 187 page interview-transcript. Therefore, the Court believes this document is in fact Sotos' notes, which fall under the ambit of the aforementioned investigatory privilege.

Plaintiff next separately argues that she is entitled to the Egizio interview transcript (Joliet Privilege Log No. 3), because the interview was conducted in the presence of a third-party, Siegel; and Sotos gave a copy of the transcript to Siegel. Therefore, it is clear Joliet did not intend for the interview to be confidential, and the interview transcript thus falls outside the bounds of the attorney-client privilege. In response, Joliet appears to tacitly admit the interview transcript is not confidential, instead only arguing that any notes or summaries prepared by Sotos remain confidential. However, Joliet's argument cannot stand, as Joliet does not argue the transcript bears any attorney notes, characterizing it only as a “verbatim statement.” As such the Court agrees with the Plaintiff that the transcript of Egizio's interview is not protected by privilege and consequently must be disclosed.

*4 Plaintiff finally argues that Joliet has waived its attorney-client privilege to the aforementioned documents in two ways. First, Joliet expressly waived the privilege by disclosing and/or relying on the findings of the Sotos investigation in its EEOC position statement. Express waiver of the privilege occurs primarily when information that would otherwise be privileged is not kept confidential. Patrick v. City of Chicago, 154 F. Supp. 3d 705, 711 (N.D. Ill. 2015); citing United States v. Buljubasic, 808 F.2d 1260, 1268 (7th Cir. 1987). Disclosure of confidential communications is inconsistent with the attorney-client relationship and almost invariably waives the privilege “with respect to the world at large; selective disclosure is not an option.” Id. citing Burden–Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003).

After examining the EEOC report filed by Plaintiff, the Court believes the Plaintiff has overstated Joliet's usage of the Sotos findings within the EEOC report. Joliet's EEOC position statement only states that an investigation was in fact performed, and makes a mere mention of the Sotos investigation's findings, namely that the impermissible conduct was the byproduct of an ongoing consensual affair. Equally, Joliet confirms, and Plaintiff has not disproven, that no materials from the investigation were voluntarily tendered to the EEOC. Finally, Plaintiff has provided no case law in support of its contention that relying on the findings of a privileged internal investigation will, in essence, serve as a blanket waiver of the attorney-client privilege protecting the fruits of the investigation. Therefore the Plaintiff has not shown Joliet expressly waived its privilege.

Plaintiff next argues that Joliet impliedly waived its attorney-client privilege by 1.) putting at issue the veracity of the Plaintiff's claims when it labeled her claims “false,” “sanctionable under Rule 11,” and “fraudulent,” in Joliet's affirmative defenses and; 2.) relying on the Faragher/Ellerth affirmative defense. Regarding Plaintiff's first argument; an implied waiver can result if a client partially discloses the privileged communication or “relies on a legal claim or defense, the truthful resolution of which will require examining confidential communication.” Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1098 (7th Cir. 1987). Similarly, while “raising a matter outside the scope of the Plaintiff's prima facie case,” such as an affirmative defense, “may voluntarily inject an issue into the case;” “[a] defendant's mere denial of a plaintiff's claim will not amount to a waiver [of the privilege].” Dawson v. New York Life Ins. Co., 901 F. Supp. 1362, 1369 (N.D. Ill. 1995); citing Lorenz, 815 F.2d at 1098 (7th Cir. 1987).

In this regard, the Court does not believe this characterization of Plaintiff's claims in Joliet's affirmative defenses necessarily puts the veracity of Plaintiff's claims at issue. Instead they are merely denials of the alleged misconduct. See Chicago Meat Processors, Inc. v. Mid-Century Ins. Co., No. 95 C 4277, 1996 WL 172148, at *4 (N.D. Ill. Apr. 10, 1996) (mere denial is insufficient to waive the privilege). “Falsity,” “fraudulence,” and “sanctionability,” are not affirmative defenses – even though Joliet has pleaded them as such. Though colorful, Joliet has in effect already said the Plaintiff's allegations are false by denying the allegations in their Answer. The actual veracity of Plaintiff's allegations will only be directly at issue should Joliet move for sanctions, at which point Joliet must then necessarily demonstrate Plaintiff's claims are in fact false. See Sarkis' Cafe, Inc. v. Sarks in the Park, LLC, 55 F. Supp. 3d 1034, 1041 (N.D. Ill. 2014) citing Winding v. Pier Mgmt. Serv., No. 96 C 7461, 1997 WL 51475, at *2 (N.D. Ill. Feb. 4, 1997) (affirmative defense that defendant terminated plaintiff's employment for “legitimate, non-discriminatory” reason stricken as unnecessary and inappropriate because assertion already put in issue by defendant's denial in its answer).

*5 Therefore, because Joliet's colorful characterizations merely duplicate their existing denials and, as of yet, have no bearing on any issue in this case, they are not a waiver. However, should Joliet actually rely on the investigation while moving for sanctions, or in any other regard, it will consequently waive the privilege protecting the communications. See Claffey v. River Oaks Hyundai, 486 F. Supp. 2d 776, 778 (N.D. Ill. 2007) (explaining implied waiver only results when the party in fact uses the privileged communications to defend itself or attack its opponent).

Similarly, the Court does not believe Joliet has impliedly waived its attorney-client privilege by relying on the Faragher/Ellerth defense. To adequately plead the Faragher/Ellerth defense, a defendant must assert “(a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.” Musa-Muraemi v. Florists' Transworld Delivery, Inc., 270 F.R.D. 312, 317-318 (N.D. Ill. 2010) (Mag J. Soat Brown) quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). The Faragher/Ellerth defense will waive attorney-client privilege of any investigation documents and communications, as it puts directly at issue the reasonableness those remedial measures. Id.

Joliet in response does not dispute that the Faragher/Ellerth defense can operate as a broad waiver of attorney-client privilege. Joliet's argument is far simpler: “we're just not using it.” The Court agrees. The Plaintiff admits Joliet does not allege the requisite elements of the defense. Furthermore, the reasonableness of the Sotos investigation is not at issue, as the investigation is not the preventative/remedial measure contemplated by the Faragher/Ellerth defense. See McPherson v. City of Waukegan, 379 F.3d 430, 439–42 (7th Cir. 2004) (detailing requirements of the affirmative defense). Thus, the reasonableness of the Sotos investigation remains out of issue, and any privileges have not been impliedly waived. The Sotos report and its summary (Joliet Privilege Log No(s). 1 and 2), and Sotos' notes from each interview (Joliet Privilege Log No(s). 4-42), fall well within the protections afforded by the attorney-client privilege and need not be disclosed.

Turning now to the body of Egizio's Motion to Quash; the Court has trouble apprehending Egizio's argument because it blurs the distinction between the holders of the privilege, and the protected communications at issue. However, despite these difficulties, it is clear that Egizio has failed to demonstrate why he did not waive both the attorney-client privilege and work product protection, when he voluntary disclosed a confidential communication between himself and his attorney Siegel, to the third party Sotos. See United States v. Nobles, 422 U.S. 225, 239 (1975) (a knowing disclosure to a third party almost invariably surrenders the privilege); accord United States v. Brock, 724 F.3d 817, 821 (7th Cir. 2013); see also Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007) (waiver will exist despite the client's subjective intention that it not be waived).

Similarly, Egizio also appears to argue he may assert the privilege for any communications between Sotos and Egizio, as Egizio was an employee of Joliet and is thus the “client” to Joliet's “attorney.” This argument is unavailing however, as Egizio does not allege it has a joint-defense agreement or a common interest with Joliet, which could otherwise extend an aura of protection between these two parties' communications. See Beneficial Franchise Co. v. Bank One, N.A., 205 F.R.D. 212, 214 (N.D. Ill. 2001) (explaining extent of attorney-client privilege for communications between counsel for co-defendants). Therefore, the Court believes Joliet alone is Sotos' “client” and therefore only Joliet may assert the privilege for these communications.

CONCLUSION

*6 For the reasons that follow, Joliet's Motion to Quash [Doc. No. 24] is GRANTED IN PART and Egizio's Motion to Quash [Doc. No. 35] is DENIED. All parties shall make disclosures consistent with this Order within 7 days.

SO ORDERED.

ENTERED: