Koumoulis v. Independent Financial Marketing Group, Inc.
295 F.R.D. 28
E.D.N.Y2013Background
- Plaintiffs Koumoulis, Hatzis, Milito, and Dafniotis are (former) employees of LPL and Astoria Federal; a dispute over alleged discrimination and retaliation is in the complaint.
- Defendants assert affirmative defenses, including a Faragher/Ellerth defense, and withheld 57 documents on privilege grounds.
- Parties dispute production of documents relating to internal investigations and EEOC charges; privilege log descriptions are vague.
- Court conducted in camera review of documents; issue whether communications with outside counsel were legally privileged.
- Judge identified that many communications are non-privileged business or HR advice and allowed amendment of privilege log and limited deposition.
- Court granted in part the plaintiffs’ motion to compel and permitted limited deposition of Ms. Bradley; ordered amended privilege logs or declarations in lieu of a log.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether documents on privilege log are privileged attorney-client communications | Koumoulis seeks production; waiver not shown | Documents contain legal advice; privilege applies | Partially privileged; many documents not showing predominant legal purpose must be produced |
| Whether work-product protection applies to internal investigation documents | Privileged material should be produced for testing reasonableness | Documents prepared in ordinary HR context; no litigation-driven work-product | Work-product privilege not established; redactions limited to clearly privileged portions |
| Whether Faragher/Ellerth defense creates waiver of privilege over internal investigations | Waiver due to reliance on investigations as defense; broad disclosure compelled | Defense relies on reasonableness of investigation; no automatic waiver | Waiver applies to in-house notes but not to all outside-counsel communications; some portions remain privileged as opinion work product |
| Whether Plaintiffs may require Plaintiffs to produce a privilege log and/or deposition of outside counsel | Privilege log unnecessary; communications with counsel are privileged | FRCP 26(b)(5) requires a privilege description; log or declaration required | Plaintiffs must provide amended privilege logs or file a declaration; permit limited deposition of Ms. Bradley |
Key Cases Cited
- In re Cnty. of Erie, 473 F.3d 413 (2d Cir. 2007) (legal advice includes application of principles to guide conduct; primary purpose test)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (confidential communications to obtain legal advice; broad privilege rationale)
- Mejia v. United States, 655 F.3d 126 (2d Cir. 2011) (three-part test for attorney-client privilege; burden on asserting party)
- In re Grand Jury Subpoenas Dated July 6, 2005, 510 F.3d 180 (2d Cir. 2007) (work-product scope; protection for opinion work product; substantial need vs. highly persuasive need for non-opinion work product)
- Kaiser Foundation Hospitals v. Superior Court of San Mateo County, 66 Cal.App.4th 1217 (Cal. Ct. App. 1998) (limits on discovery of discrete communications; in-camera/log scrutiny urged)