## Facts

- James P. Howell alleged that, as a minor from 1976 to 1979, he was sexually abused by Rev. William Joffe in connection with St. Mary’s Catholic Church and School.
- In April 2004, Monsignor David Kagan (for the Catholic Diocese of Rockford) and Ellen Lynch (an attorney whose firm represented the Diocese) contacted Howell about his allegations.
- Howell received a voicemail left by a call placed to him; the voicemail inadvertently recorded part of a conversation between Lynch and Kagan after the call reached voicemail.
- The recorded segment included discussion of how to respond to Howell’s allegations, including legal advice and litigation strategy.
- Howell retained the recording and sought to use its contents in support of claims alleging wrongful handling of his allegations, including fraud- and conspiracy-type theories against church defendants and the attorneys.
- Defendants moved for a protective order to bar discovery and use of the privileged portion of the recording and moved to dismiss several counts for failure to state a claim and, for fraud theories, failure to plead with particularity.

## Issues

1. Whether an accidentally recorded attorney-client conversation captured on an opposing party’s voicemail is protected by the attorney-client privilege.
2. Whether the inadvertent recording constitutes waiver of the attorney-client privilege.
3. Whether the court should issue a protective order under Rule 26(c) barring discovery and use of the privileged portion of the recording.
4. Whether claims relying on the recording’s privileged contents satisfy Rule 9(b) and state a claim under Rule 12 standards.

## Decision

- The court held that the portion of the voicemail reflecting legal advice and litigation strategy was protected by the attorney-client privilege.
- The court held the privilege was not waived by the inadvertent recording on Howell’s voicemail.
- The court granted the motion for a protective order in part, barring discovery and use of the privileged portion of the recording.
- The court dismissed Count VII because it depended on the privileged communication.
- The court granted dismissal of Counts V, VIII, IX, and X for failure to state a claim and, as applicable, failure to plead fraud with the particularity required by Rule 9(b).
- The rulings resolved the identified motions but did not terminate the entire case.

## Legal Principles

- Attorney-client privilege covers communications between counsel and an authorized client representative made for the purpose of seeking or providing legal advice, including litigation strategy.
- An accidental interception or recording of an attorney-client communication by a third party, without intent by attorney or client to disclose, does not by itself waive the privilege.
- A protective order under Federal Rule of Civil Procedure 26(c) may bar discovery and use of privileged material to prevent disclosure and litigation use of protected communications.
- Fraud-based claims must be pleaded with particularity under Rule 9(b); a plaintiff cannot satisfy that requirement by relying on privileged communications that are not available for use in the litigation.
- When a claim’s factual foundation depends on privileged communications excluded from discovery and use, dismissal under Rule 12 standards may be warranted.

## Conclusion

The court treated an inadvertently recorded voicemail segment between diocesan counsel and a diocesan official as privileged attorney-client strategy, barred its discovery and use through a protective order, and dismissed multiple counts—especially fraud-based theories—because they relied on the privileged content and were insufficiently pleaded under federal pleading rules.


Howell v. Joffe, 483 F. Supp. 2d 659 (N.D. Ill. 2007)