Callahan v. HSBC Holdings plc
1:22-cv-08621
S.D.N.Y.May 15, 2025Background
- Plaintiff moved to compel HSBC to produce documents withheld as privileged in a retaliation case examining Plaintiff’s suspension and termination.
- HSBC relied on results of its investigation (triggered by a CME inquiry) as the real reason for Plaintiff’s termination, not advice of counsel.
- Plaintiff argued HSBC used the privilege as a “sword and shield,” implying a waiver by putting privileged communications at issue.
- The investigation was overseen in part by legal counsel, but non-privileged materials (interview memoranda, investigative report) were already produced.
- The Court considered arguments regarding both attorney-client privilege and attorney work product protection.
- Plaintiff also sought attorney fees and expenses under Rule 37, which the Court denied.
Issues
| Issue | Plaintiff’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| Waiver of Attorney-Client Privilege | HSBC put privileged materials at issue by relying on investigation as reason for termination | Only factual basis for termination is at issue, not legal advice | No waiver; HSBC not relying on advice of counsel |
| “Good Faith” Investigation Exception | Cites cases (e.g., Barbini) where “good faith” defense waived privilege | Investigation assessed Plaintiff’s actions, not legal compliance | No waiver; investigation concerned facts, not law |
| Pretext/Evidence of Discriminatory Motive | Privileged docs may contain evidence of pretext | Pretext theory is speculative; sufficient non-privileged discovery produced | No need for privileged materials; non-privileged disclosure sufficient |
| Waiver of Work Product Protection | Claims substantial need for withheld work product | No substantial need; privilege logs not deficient | No waiver; no substantial need shown |
Key Cases Cited
- In re Cnty. of Erie, 546 F.3d 222 (2d Cir. 2008) (discusses standards for implied waiver of attorney-client privilege)
- United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991) (privilege may be waived when fairness requires examining protected communications)
- Robinson v. Time Warner, Inc., 187 F.R.D. 144 (S.D.N.Y. 1999) (no privilege waiver when the employer’s position did not place the investigation at issue)