Two Moms, Two Cases and Two Different Results: Part II

September 8, 2021

Last week’s Privilege Point described a court’s curt rejection of attorney-client privilege protection for a plaintiff’s communications with her mom – and noted the court’s surprising failure to address an obvious work product claim. Eight days later, another court dealt with mother-daughter communications.

In Pogorzelska v. VanderCook College of Music, No. 19 C 5683, 2021 U.S. Dist. LEXIS 120958 (N.D. Ill. June 29, 2021), a college student sued her college, and a classmate she alleged had sexually assaulted her. Defendants sought to discover three text messages plaintiff’s mom sent the plaintiff two years after the incident. The court understandably found that most of the texts’ content deserved work product protection, which was not waived by the mother-daughter disclosure (although inexplicably finding that certain portions did not deserve work product protection because they reflected “the mother’s personal view”). Id. at *11. In addressing plaintiff’s attorney-client privilege claim, the court understandably found that the plaintiff’s mom was not her “agent” for attorney-client privilege purposes. Id. at *7-8. The court also rejected plaintiff’s common interest doctrine argument – concluding that her mom had no “legal interest in the case whatsoever,” and that “[t]he mere fact that Plaintiff and her mother are family, or that Plaintiff’s mother hopes her daughter prevails and is interested in the course of the litigation is insufficient” to support a common interest doctrine claim. Id. at *5-6.

As with last week’s Privilege Point, this decision is also important for what it fails to address. Although denying privilege protection, the court off-handedly noted that plaintiff “stat[ed] generally that her mother ‘is also represented by Plaintiff’s lawyers.'” Id. at *5. Such a joint representation normally would cinch privilege protection. One cannot help but wonder if plaintiff’s lawyer put all the privilege protection eggs in the losing common interest basket.