Equal Employment Opportunity Commission v. BDO USA, L.L.P.
856 F.3d 356
| 5th Cir. | 2017Background
- Bower, a former BDO HR executive, filed an EEOC charge alleging gender discrimination, retaliation, and a hostile work environment; the EEOC issued RFIs and a subpoena to BDO seeking documents related to its investigation.
- BDO produced some materials but withheld 278 documents, producing a privilege log asserting attorney-client privilege for communications involving in-house and outside counsel, HR personnel, and other employees.
- The EEOC filed a subpoena-enforcement action, arguing the privilege log was deficient (vague entries, business vs. legal advice indistinct, and unclear confidentiality) and sought in camera review; it also alleged Bower’s declarations showed many communications were business, not legal, advice.
- The magistrate judge declined in camera review, found the log adequate, denied enforcement, and granted BDO a protective order restricting EEOC communications and requiring return/destruction of work product.
- The district court summarily affirmed; the EEOC appealed to the Fifth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of privilege log to establish attorney-client privilege | Log is vague, incomplete, and fails to differentiate legal vs. business communications; EEOC bears no burden to disprove privilege until BDO makes a prima facie showing | Log and position statements suffice to identify privileged items; magistrate’s finding of adequacy should stand | Court held log insufficient to establish prima facie privilege for all entries; vacated and remanded for further review (likely in camera) |
| Burden of proof re: privilege | BDO must prove privilege for each withheld item; magistrate improperly shifted burden to EEOC | Magistrate effectively required EEOC to show improper claims | Court held district erred in placing burden on EEOC; BDO must make the prima facie showing |
| Distinguishing legal advice from business advice (esp. in-house counsel & HR context) | Many entries reflect business directives; Bower’s declaration supports non-legal purpose | Presence of counsel or “legal” label makes communications privileged | Court held log failed to show legal advice predominated where business and legal advice may be intertwined; conclusory labels insufficient |
| Protective order scope and legal standard | Protective order rests on same erroneous, overly broad view that communications with counsel are automatically privileged | BDO argued protection warranted to prevent EEOC from eliciting privileged communications and to preserve confidentiality | Court found magistrate articulated incorrect legal standard (e.g., “anything that comes out of that lawyer’s mouth is legal advice”); remanded to reconsider protective order under correct standards |
Key Cases Cited
- In re Auclair, 961 F.2d 65 (5th Cir.) (attorney-client privilege is fact-specific)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (scope of corporate attorney-client privilege and determining who is within privilege sphere)
- King v. Univ. Healthcare Sys., 645 F.3d 713 (5th Cir. 2011) (privilege-log content and standard of review for privilege findings)
- United States v. Robinson, 121 F.3d 971 (5th Cir.) (elements required to establish attorney-client privilege)
- Fisher v. United States, 425 U.S. 391 (U.S.) (privilege is narrowly construed as an exception to disclosure)
- United States v. El Paso Co., 682 F.2d 530 (5th Cir.) (privilege-log must enable testing of privilege claims)
- In re Avantel, S.A., 343 F.3d 311 (5th Cir.) (review standards for privilege determinations)