Scott v. Chipotle Mexican Grill, Inc.
94 F. Supp. 3d 585
S.D.N.Y.2015Background
- Collective/class action against Chipotle alleging wage-and-hour violations; discovery dispute over 30 entries on Chipotle’s privilege log.
- Chipotle produced an amended privilege log and submitted certain documents for in camera review; plaintiffs moved to compel production of specified entries.
- Key disputed items: (1) a November 8, 2011 consultant report by HR consultant Cinda Daggett; (2) emails with Mountain State Employers Council (MSEC) attorney Mark Parcheta; (3) internal corporate emails among Chipotle employees referencing legal advice; and (4) sufficiency of privilege-log descriptions.
- Plaintiffs argued Daggett’s report and other materials were non‑privileged fact work; Chipotle asserted attorney‑client or Kovel‑agent privilege for third‑party consultants and privilege for communications with MSEC and internal recipients with "need to know."
- Magistrate Judge Netburn reviewed the log and documents in camera and issued a mixed ruling: Daggett report ordered produced; many MSEC and Messner Reeves communications held privileged; certain internal corporate emails and portions of documents ordered produced or redacted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Privilege for Daggett consultative report (Entry No. 1) | Daggett is a non‑lawyer HR consultant; report is factual and not privileged | Messner Reeves/Chipotle retained Daggett as agent under Kovel to assist counsel; report privileged | Not privileged — Daggett provided factual job‑function analysis, no contemporaneous evidence she acted as counsel’s agent; ordered produced |
| Privilege for MSEC attorney emails (Entries Nos. 5–6) | MSEC provided business/HR advice, not legal advice; materials are non‑privileged | Parcheta (MSEC) is an attorney and provided legal analysis via membership services; communications sought legal advice | Privileged — in camera review showed Parcheta’s communications were legal in nature; privilege upheld |
| Privilege for internal corporate emails among employees (various entries) | No attorney on some threads; communications are business, so privilege waived | Internal dissemination among employees with need‑to‑know does not waive corporate privilege | Mixed — many internal emails and attachments privileged where they conveyed or implemented legal advice; specified portions of Entries 7, 29, 30 and parts of a PowerPoint/redactions ordered produced |
| Sufficiency of privilege log detail | Initial log lacked adequate detail to assess claims | Revised Fifth Amended Privilege Log is adequate under Local Rule 26.2(c) | Adequate — Chipotle’s revised log supplied required information; objection overruled |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (corporate attorney‑client privilege protects communications to counsel by employees who have "need to know")
- United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) (privilege can extend to non‑lawyer agent employed to facilitate attorney‑client communications when necessary)
- In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032 (2d Cir. 1984) (limitations on extension of privilege to outside consultants)
- United States v. Schwimmer, 892 F.2d 287 (2d Cir. 1989) (Kovel protects third‑party communications to extent they are in connection with legal representation)
- United States v. Adlman, 68 F.3d 1495 (2d Cir. 1995) (Kovel exception requires contemporaneous documentation showing third party acted in legal, not purely business, capacity)
- Ackert v. United States, 169 F.3d 136 (2d Cir. 1999) (third‑party participation must improve attorney‑client communication; advice must be attorney’s)
- In re County of Erie, 473 F.3d 413 (2d Cir. 2007) (elements of attorney‑client privilege and purpose‑of‑communication test)
- United States v. Mejia, 655 F.3d 126 (2d Cir. 2011) (privilege protects communications made in confidence for legal advice; third‑party inclusions are narrowly construed)
- Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58 (S.D.N.Y. 2010) (privilege for third parties depends on supervision by counsel and intent that communications remain confidential)