Plаintiffs move to compel the production of documents, withheld as privileged, that contain communications between Defendants and their outside counsel concerning internal investigations of Plaintiff Tasso Koumoulis’s discrimination and retaliation complaints. See Letter from Kenneth A. Goldberg, Esq. to Hon. Vera M. Scanlon (the “Joint Letter”), ECF No. 41. Plaintiffs also seek to depose Defendants’ outside counsel concerning these internal investigations. Id. at 4. Defendants move to compel Plaintiffs to provide a privilege log that would list communications between Plaintiffs and their counsel regarding internal complaints and internal investigations. Id. at 9. After reviewing the Parties’ submissions, this Court ordered that Defendants file, under seal, selected documents for in camera review. See Order, Sept. 30, 2013, ECF. For the reasons stated herein, Plaintiffs’ motion to compel is granted in part and denied in part. Defendants’ motion to compel is granted in part and denied in part.
I. BACKGROUND
Plaintiffs Mr. Tasso Koumoulis (“Mr. Koumoulis”), Christos Hatzis (“Mr. Hatzis”), Dominic Milito (“Mr. Milito”) and Peter Dafniotis (“Mr. Dafniotis”) are current and former employees of Defendants Independent Financial Marketing Group, Inc., LPL Financial Corporation (collectively, “LPL”)
Plaintiffs allege that Defendants discriminated against them on the basis of their religion, national origin and race or color; subjected Plaintiffs to a hostile work environment; and retaliated against Plaintiffs for their complaints of unlawful discrimination. Id. ¶¶ 22-25. Plaintiffs’ religious affiliation is with the Greek Orthodox Church. Id. ¶21. Mr. Koumoulis, Mr. Hatzis and Mr. Dafniotis are of Greek ancestry. Id. ¶ 21. Mr. Hatzis claims Defendants further discriminated against him on the basis of his disability, which included major depressive disorder. Id. ¶¶ 48-58. Mr. Koumoulis alleges Defendants also discriminated against him on the basis of his age, which was fifty-eight at the time of his firing. Id. ¶¶ 59-71. Plaintiffs allege that LPL’s actions violated Title VII, 42 U.S.C. § 2000e et seq.; Section 1981 of the Civil Rights Act of 1866 (“Section 1981”), 42 U.S.C. § 1981 et seq.; the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq.; and the Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. § 621 et seq. Furthermore, Plaintiffs allege that all three Defendants’ discriminatory and retaliatory behavior violated the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq. See Am. Compl.
Defendants generally deny these allegations and raise several affirmative defenses, including a Fifth Affirmative Defense that:
Plaintiffs’ claims are barred, in whole or in part, because Defendants exercised reasonable care to prevent and correct promptly any discriminatory behavior by having anti-discrimination policies and procedures for investigating and preventing discrimination with a complaint procedure and Plaintiffs unreasonably failed to take action, pursuant to these policies or otherwise, to be free from discrimination.
Answer 14, May 24, 2010, ECF No. 8.
The Parties have almost concluded discovery. They have exchanged thousands of documents and conducted depositions. The present dispute concerns the production of certain documents identified by Defendants on their privilege log. See Joint Letter Ex. A (“Privilege Log”). This privilege log lists fifty-seven documents, each one of which was withheld based on both attorney-client privilege and attorney work-produet privilege. Id.
The withheld documents concern Mr. Koumoulis’s internal complaints of unlawful
Mr. Koumoulis’s next complaint was raised in or around March 2008, when he and the other Plaintiffs filed their Charges against Defendants with the United States Equal Employment Opportunity Commission (“EEOC”). Am. Compl. ¶¶9, 67; see Answer ¶ 67.
On November 14, 2008, Mr. Koumoulis “submitted a memorandum regarding a meeting” that was held the prior day. Am. Compl. ¶ 68. Defendants placed Mr. Koumoulis on administrative leave while they conducted an investigation. Id. On December 2, 2008, they issued him a memorandum upon the completion of that investigation. Id.; see Answer ¶ 68; Joint Letter Ex. D at P0832 (December 2, 2008 memorandum). The pleadings again do not specify whether Mr. Koumoulis’s November 14, 2008 complaint was a complaint of unlawful discrimination and/or retaliation, nor do the pleadings specify whether Defendants’ investigation concerned discrimination and/or retaliation. In their motion papers, Plaintiffs describe Mr. Koumoulis’s November 14, 2008 memorandum as a “protected complaint,” and Defendants do not dispute this point; this Court will therefore accept Plaintiffs’ unrefuted representation for the purposes of this motion. Joint Letter 2.
Plaintiffs further allege that Mr. Koumoulis was issued an “unjustified mеmorandum” related to customers’ concerns on or about February 5, 2009, and he responded in writing on February 24, 2009. Am. Compl. ¶ 69; Answer ¶ 69 (confirming these dates); Joint Letter Ex. D at P0311-12 (February 5, 2009 memorandum). Plaintiffs contend, again without opposition, that Mr. Koumoulis’s February 24, 2009 response was a “protected complaint.” Joint Letter 2. The documents reviewed in camera provide some support for this assertion.
On July 7, 2009, Defendants issued Mr. Koumoulis a final warning that criticized his job performance. Am. Compl. ¶ 70; Answer ¶70. Two days later, on July 9, 2009, Mr. Koumoulis filed an internal complaint that the parties admit included allegations of discrimination, harassment and retaliation. Am. Compl. ¶ 70; Answer ¶ 70. Defendants sent Mr. Koumoulis a memorandum titled “Findings and Conclusions of Investigation” on July 29, 2009; in this memorandum, Defendants concluded that his complaints were “unfounded.” Joint Letter Ex. D at P084647. Defendants fired Mr. Koumoulis on September 8, 2009. Am. Compl. ¶ 71; Answer ¶ 71. The Plaintiffs received their Notice of Right to Sue from the EEOC in December 2009, and they filed the present action on March 1, 2010. Am. Compl. ¶ 10; Compl., Mar. 1, 2010, ECF No. 1.
During a telephone conference with the Court, Defendants described the withheld attorney-client communications as documents concerning the present litigation and the EEOC Charges; concerning “general outside counsel used in conjunction with performance issues”; “generally privileged documents that аre not even arguably part of the investigation”; and an estimated “six to ten” “isolated e-mails between outside counsel and the [human resources] individuals” related to the internal investigation, in which outside attorneys “provid[ed] legal advice but [did]
A few privilege log entries involve Defendants’ in-house counsel Marjory Robertson, Esq. (“Ms. Robertson”), and not outside counsel. See Privilege Log. Based on Defendants’ privilege log, Ms. Robertson was involved in matters related to Mr. Koumoulis since at least January 8, 2008. See Privilege Log Doe No. 55 (email “regarding T. Koumoulis” sent by Ms. Robertson on Jan. 8, 2008). The Parties have provided little explanation of Ms. Robertson’s role in the internal investigations. In addition to Ms. Robertson and Ms. Healy, several members of Defendants’ human resources staff participated in matters concerning Mr. Koumoulis: Ms. Claudia Mellon (“Ms. Mellon”), Ms. Anna Orsenigo (“Ms. Orsenigo”), Ms. Kathy Bakke (“Ms. Bakke”) and Ms. Sheila Hunter (“Ms. Hunter”). See Joint Letter Ex. C at Mellon 141:3-17.
Most of the communications on the privilege log include Ann Bradley, Esq. (“Ms. Bradley”) of the law firm Duane Morris LLP. See Privilege Log. The pleadings and motions papers are silent as to precisely when outside counsel became involved in matters related to Mr. Koumoulis, but Ms. Bradley has bеen involved since at least May 21, 2008. See Privilege Log Doe. No. 30. Other than a few pages of deposition transcripts and what is apparent from the documents reviewed in camera, there is no evidence before this Court as to the intended scope or purpose of Ms. Bradley’s involvement. See Joint Letter Ex. C at Mellon 136:4-22, 141:21-142:8 (Ms. Mellon consulted Ms. Bradley on the internal investigations); Joint Letter Ex. C at Bakke 234:9-25 (Ms. Bakke worked with counsel from Duane Morris LLP on a draft memorandum); but see Joint Letter 6 (contending that “outside counsel did not participate in the factual investigation, interview witnesses or otherwise create fact work product upon which Defendants will rely in this litigation ____”). Defendants did not provide sworn affidavits or additional deposition transcripts that might have clarified Ms. Bradley’s role, but it appears that her role was focused on the internal investigations. References to “EEOC counsel” in the documents filed under seal suggest that, in addition to hiring Ms. Bradley, Defendants used another attorney or other attorneys to assist with Plaintiffs’ EEOC Charges.
II. DISCUSSION
Plaintiffs identify five categories of documents included on Defendants’ privilege log which Plaintiffs believe are discoverable: (1) documents concerning Mr. Koumoulis’s November 14, 2008 complaint, (2) documents concerning his February 24, 2009 complaint, (3) documents concerning his July 9, 2009 complaint, (4) documents concerning “other investigations of Mr. Koumoulis,” and (5) documents related to Plaintiffs’ EEOC Charges. See Joint Letter 2. Plaintiffs specified twenty-eight documents described in Defendants’ privilege log that appear to be related to these five categories, but Plaintiffs note that it is difficult to assess the documents based on Defendants’ vague descriptions. See id. at Ex. B.
Plaintiffs contend that notwithstanding any claim of privilege, Defendants should be ordered to produce documents related to the internal investigations. Should this Court find that Defendants raised a defense based on the sufficiency of their investigations,
Defendants maintain that the privilege remains intact because their affirmative defense relies on the sufficiency of their internal investigations, not on their communications with outside counsel. Id. at 6. Defendants also contend that because these attorney-client communications postdate Plaintiffs’ EEOC Charges, they are inherently part of Defendants’ litigation preparation, and are therefore privileged. Id
In addition, Defendants seek the production of Plaintiffs’ privilege log. Id. at 9. Plaintiffs contend that a privilege log is unnecessary because a list of privileged redactions was emailed to Defendants and the information Defendants seek concerns indisputably privileged communications between Mr. Koumoulis and his counsel. Id. at 5.
For the reasons stated below, Plaintiffs’ motion to compel the production of withheld documents is granted in part and denied in part, and Plaintiffs may conduct a limited deposition of Ms. Bradley concerning the business advice she provided to Defendants. Defendants’ motion to compel Plaintiffs to provide a privilege log is granted in part and denied in part.
a. Legal Standards Concerning Privilege and Waiver
Federal Rule of Civil Procedure (“FRCP”) 26 requires that the party asserting a privilege “(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A). In addition to these requirements, Local Civil Rule 26.2 mandates that for documents the party asserting privilege provide a description of “(i) the type of document, e.g., letter or memorandum; (ii) the general subject matter of the document; (iii) the date of the document; and (iv) the author of the document, the addressees of the document, and any other recipients, and, where not apparent, the relationship of the author, addressees, and recipients to each.” Local Civil Rule 26.2(a)(2)(A).
1. Attorney-Client Privilege
“ ‘The attorney-client privilege protects communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal assistance.’ ” Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Justice,
A more detailed consideration of the first and third factors is warranted in this case. Concerning the first factor, “the mere fact that a communication is made directly to an attorney, or an attorney is copied on a memorandum, does not mean that the communication is necessarily privileged.” U.S. Postal Serv. v. Phelps Dodge Ref. Corp.,
In the context of the attorney-client privilege, “legal advice involves the interpretation and application of legal principles to guide future conduct or to assess past conduct.” In re Cnty. of Erie,
“Attorneys frequently give to their clients business or other advice which, at least insofar as it can be separated from their essentially professional legal services, gives rise to no privilege whatever.” Colton v. United States,
It is well-recognized that in-house counsel may serve both legal and business functions, and courts will scrutinize the nature of their communications before finding that those communications are privileged. See In re Cnty. of Erie,
Ultimately, the burden is on the party asserting the attorney-client privilege to establish each element of the three-part standard. See Mejia,
2. Work-Product Privilege
The work-product privilege protects documents created by counsel or per counsel’s directive, in anticipation of litigation. See In re Grand Jury Subpoenas Dated March 19, 2002 & August 2, 2002,
As with the attorney-client privilege, the party asserting the work-product privilege “bears the heavy burden of establishing its applicability.” In re Grand Jury Subpoena Dated July 6, 2005,
Once a party establishes that a document constitutes fact work product, it is not discoverable absent a showing of “substantial need”; in contrast, opinion work product is not discoverable absent a “highly persuasive showing” of need. In re Grand Jury Proceedings,
When assessing whether a document was prepared in anticipation of litigation, courts consider “if ‘in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” United States v. Adlman,
Even where the document “might also help in preparation for litigation,” it will not be protected by the work-product doctrine if it was “prepared in the ordinary course of business” or “would have been created in essentially similar form irrespective of the litigation.” Id.; see Allied Irish Banks,
3. At-Issue Waiver
Both the attorney-client and work-product privileges may be waived if a party puts the privileged communication at issue by relying on it to support a claim or defense. Such a waiver “may be implied in circumstances where it is called for in the interests of fairness,” In re Sims,
Whether a waiver may be implied is determined on a case-by-ease basis. In re Sims,
4. Waiver and the FaragherlEllerth Defense
In a discrimination action where “no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any [discriminatory] behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.” Vance v. Ball State Univ., — U.S. -,
However, the implied waiver does not apply to every type of investigation; such a broad interpretation would “eviscerate both the attorney-client privilege and the work product doctrine.” McGrath,
In cases where counsel had an advisory, rather than a fact-gathering, role in the investigation, courts have come to differing conclusions as to whether the implied waiver extends to attorney-client communications. For example, in Kaiser Foundation Hospitals v. Superior Court of San Mateo County,
[w]here a defendant has produced its files and disclosed the substance of its internal investigation conducted by nonlawyer employees, and оnly seeks to protect specified discrete communications which those employees had with their attorneys, disclosure of such privileged communications is simply not essential for a thorough examination of the adequacy of the investigation or a fair adjudication of the action.
Id. at 1227,
In contrast, in Walker,
Finally, a party may withdraw a claim or defense in order to preserve a privilege that would otherwise be forfeited. See In re Sims,
b. Legal Analysis of Privilege and Waiver
As discussed above, Defendants claim that each of the fifty-seven documents listed on their privilege log are protected by the attorney-client and work-product privileges. See Privilege Log.
1. Defendants’ Privilege Log
By way of example, a sample of Defendants’ privilege log entries is reproduced below.
Doc. Date Author/From To Cc Subject Privilege
1. 11/14/08 Claudia Mellon Ann Bradley, Esq., Lou Mastropietro, Kathy Bakke Matt Baval 11/14/08 email from T. Koumoulis regarding 11/13 meeting Attorney-Client Communication, Attorney Work Product
17. 6/26/09 Claudia Mellon Ann Bradley, Esq., Anna Orsenigo T. Koumoulis Attorney-Client Communication, Attorney Work Product
56. 8/7/08 Lou Marjory Mastropietro Robertson, Esq. Email regarding T. Koumoulis Attorney-Client Communication, Attorney Work Product
Privilege Log 1-2, 7.
There is no dispute concerning whether Defendants had an attorney-client relationship with outside counsel or whether Defendants kept their attorney-client communications confidential. However, Defendants’ privilege log provides insufficient information as to the third factor required for finding that the attorney-client privilege applies: whether the communications’ predominant purpose was to obtain or provide legal advice.
Defendants also fail to meet their burden concerning the work-product privilege. Most of the documents on their privilege log were sent from a non-attorney — usually Ms. Mellon or Ms. Bakke — and there is no explanation offered for why their writings should be considered attorney work product. As to those documents written or partially written by an attorney, the privilege log provides insufficient information to determine whether an attorney created these documents because of litigation or whether, absent the threat of future litigation, no comparable communications would have been created. Defendants’ reliance on a Faragher/Ellerth defense suggests that Defendants would have conducted an internal investigation regardless of whether the complaining employee also pursued litigation. See U.S. Fid. & Guar. Co.,
In an abundance of caution, the Court will allow Defendants to amend their privilege log to include the required information for the documents that were not reviewed in camera. See Fed.R.Civ.P. 26(b)(5)(A). The Parties should then re-consider whether the production of any withheld documents is warranted in light of the amended privilege log and the analysis in this Memorandum and Order as to the documents reviewed in camera. For example, it appears that Ms. Robertson, the in-house counsel, was the only attorney involved in Document Nos. 55-56 (emails “regarding T. Koumoulis” that were not reviewed in camera). Defendants expressly “waived privilege with respect to ... [her] investigations of Mr. Koumoulisfs] ... complaints,” Joint Letter Ex. C at Robertson 40:7-20,
Defendants must provide an amended privilege log by November 12, 2013 concerning the documents that were not reviewed in camera, produce any such documents that are not privileged under the parameters of this Memorandum and Order and confer with Plaintiffs’ counsel to resolve any outstanding issues.
2. Documents Reviewed In Camera
About half of the documents listed on Defendants’ privilege log were provided to and
i. Non-Privileged Attorney-Client Documents Reviewed In Camera
Concerning the attorney-client privilege, Defendants met their burden as to the first two prongs of the standard, but again fail to establish that the disputed communications’ predominant purpose was to provide legal advice.
It is Defendants’ position that “LPL’s outside counsel did not conduct the internal investigations,” Joint Letter 9, but outside counsel was undeniably involved in the investigations. In the deposition excerpts Plaintiffs provided,
The communications reviewed in camera provide some clarity as to the purpose of outside counsel’s advice. In general, these documents show that Ms. Bradley was not a consultant primarily on legal issues, but instead she helped supervise and direct the internal investigations primary as an adjunct member of Defendants’ human resourcеs team. She instructed Defendants’ human resources personnel on what actions (including disciplinary actions) should be taken, when to take those actions, and who should perform them; told Defendants what should be documented and how it should be documented; drafted written communications to Mr. Koumoulis responding to his complaints; and drafted scripts for conversations with Mr. Koumoulis about his complaints. In their emails to Ms. Bradley, Defendants reported the outcome of actions she directed; asked her what they should do next; and updated her on new developments. See, e.g., Privilege Log Doc. Nos. 8-9, 22, 26, 29, 31, 35, 37, 48-51, & 53-54. Thus, many of the communications concerned advice on human resources issues,
Determining whether Ms. Bradley’s advice was predominantly legal- or business-related is made somewhat more difficult by the overlapping nature of legal advice and human resources advice. A primary purpose of a company’s human resources program is to ensure compliance with the myriad of laws regulating employer-employee relations, such as the laws raised in this case, as well as, inter alia, wage-and-hour laws, benefits laws and health-and-safety laws. Even without any attorney’s participation, humаn resources work may very likely require consideration of relevant laws, and their application to the facts presented. Despite its legal content, human resources work, like other business activities with a regulatory flavor, is part of the day-to-day operation of a business; it is not a privileged legal activity. Thus, just as an employment lawyer’s legal advice may well account for business concerns, a human resources employee’s business advice may well include a consideration of the law. Cf. In re Cnty. of Erie,
An examination of the content of the disputed communications shows that their predominant purpose was to provide human resources and thus business advice, not legal advice. For example, Ms. Bradley sometimes told human resources employees exactly what questions to ask during interviews and what statements to make during meetings, including on routine human resources topics like improving Mr. Koumoulis’s job performance, customer interactions and communication skills. See, e.g., Privilege Log Doc. Nos. 27 & 54 (see also Privilege Log 7). Ms. Bradley wrote that her advice would advance business goals, such as improving business relationships, avoiding damage to LPL’s reputatiоn or assisting management in their supervisory role. See, e.g., Privilege Log Doc. Nos. 27, 50. Moreover, her advice rarely involved “the interpretation and application of legal principles to guide future conduct or to assess past conduct,” In re Cnty. of Erie,
Ms. Bradley’s status as an attorney does not transform what would otherwise be human resources and business communications into legal communications. For example, Document No. 22 is an email string between Ms. Mellon and Ms. Bradley. In this email string, Ms. Mellon describes a discussion she had with Mr. Koumoulis, and Ms. Bradley provides a draft of a letter to be sent from Ms. Mellon to Mr. Koumoulis about his complaint. Privilege Log Doc. No. 22. The fact that Ms. Bradley, an attorney, drafted this human resources communication and received an update about a discussion with Mr. Koumoulis does not turn the Bradley-Mellon exchange into a privileged legal communication. See Walker,
Furthermore, several documents concerned the scheduling of conversations with outside counsel. See Privilege Log Doc. Nos. 9, 21, 26, 50, 51. Communications about scheduling are not privileged. See Weinstein v. Univ. of Connecticut, No. 11 Civ. 1906(WWE)(HBF),
There is nothing in the record beyond the documents themselves that might change the Court’s understanding of the purpose of outside counsel’s participation in the investigation. As discussed above, Defendants did not supplement their motion papers with sworn affidavits, deposition transcripts or other evidence, despite participating in two telephone conferences with the Court after the motion papers were filed. See Docket (Minute Entries for telephone conferences dated August 14, 2013 and September 26, 2013). Thus, the Court can only review the documents themselves, which are largely not privileged.
ii. Privileged Attorney-Client Documents Reviewed In Camera
As mentioned above, a few of the withheld documents related, in whole or in part, to Plaintiffs’ EEOC Charges. See Privilege Log Doc. Nos. 27, 28, 31, 50, 51. In addition, some documents contained, in part, requests for or provisions of legal advice. See Privilege Log Doc. Nos. 8 (legal strategy), 29 (attorney’s mental impressions and legal strategy), 35 (litigation planning), 36 (litigation planning and request for legal advice concerning claims), 37 (same), 39 (litigation strategy), 48 (mental impressions and legal strategy), 50 (litigation strategy), 51 (same), 57 (request for legal advice). In the limited instances where outside counsel provided legal advice or legal impressions, those portions of the communications concerned anticipated litigation. They are not relevant to the reasonableness of Defendant’s internal investigations. See Angelone,
iii. The Work-Product Privilege and Documents Reviewed In Camera
Concerning the work-product privilege, the content of the documents reviewed in camera was not sufficient to establish that Defendants have met their burden, with the exception of a few passages that may be redacted. The communications do not clarify why documents authored by non-attorneys are purportedly privileged. Defendants have not offered evidence that any of the documents were created because of litigation, rather than simply in the course of a human resources investigation. Instead, advice related to anticipated litigation was occasionally included as an aside in communications that were predominantly related to human-resources issues.
Defendants also note that they produced to Plaintiffs the final versions of cer
Thus, except for the redacted portions of documents and documents discussed below, Defendants have failed to carry their burden to show that the documents reviewed in camera are privileged.
iv. At-Issue Waiver and Documents Reviewed In Camera
Assuming arguendo that the communications reviewed in camera were privileged (most of which were not), Defendants would have waived that privilege by asserting, as an affirmative defense, both the reasonableness of their efforts to “prevent and correct promptly any discriminatory behavior” and the reasonableness of their “policies and procedures for investigating and preventing discrimination.” See Answer 14. Contrary to Plaintiffs’ contention, Defendants’ pleading adequately asserts the Faragher/Ellerth defense. See Vance,
Recognizing that their internal investigations are at issue, Defendants admittedly waived privilege concerning in-house counsel’s notes and correspondence related to those investigations. Joint Letter 6. Defendants describe the remaining emails with outside counsel as “a very small number of emails,” id., but in the context of the investigations, the number of emails is not insignificant.
Therefore, assuming arguendo that the withheld communications were privileged, Defendants would have waived the privilege by relying on the reasonableness of their investigatory policies and procedures as a defense. Defendants would need to choose whether to assert the affirmative defense or the privilege, but could not preserve both by selectively omitting certain communications. In this ease, however, the majority of the claimed attorney-client communications relate to business advicе that is not privileged, and Defendants cannot waive a privilege that never existed.
Nevertheless, those portions of Defendants’ communications containing legal advice do remain privileged despite Defendants’ assertion of the Faragher/Ellerth defense. Opinion work product receives enhanced protection, and Plaintiffs have not made a highly persuasive showing of need for outside counsel’s legal impressions. See In re Grand Jury Proceedings,
v. Summary of Documents Reviewed In Camera
Therefore, the Court will file, under seal except as to Defendants, a copy of their Ex Parte Letter, with attachment, in which privileged material has been highlighted by the Court. These highlighted portions relate to the EEOC Charge, anticipated litigation and counsel’s “mental impressions, conclusions, opinions, or legal theories,” Fed. R. Civ. Proc. 26(b)(3)(B); these portions are privileged and may be redacted by Defendants. Except as to the highlighted sections, Defendants did not meet their burden of establishing privilege as to Document Nos. 8,
The withheld communications often forwarded or attached non-privileged communications that Defendants should produce, if they have not done so already.
Plaintiffs may depose Ms. Bradley concerning non-privileged matters, consistent with this Memorandum and Order. See Pray,
c. Plaintiffs Failure to Produce a Privilege Log
Defendants allege that Plaintiffs must produce a privilege log concerning any advice they received from their attorney “in connection with internal complaints and the Company’s investigation.” See Joint Letter 9.
Defendants’ motion is granted to the extent that Plaintiffs must provide information concerning any allegedly privileged communications. Defendants’ motion is denied to the extent that Plaintiffs will not be required to file a privilege log and may instead file a declaration as described below. If, to enforce strict compliance with FRCP 26, this Court required Plaintiffs to list each attorney-client communication, it would no more promote efficiency than if the Court likewise required Defendants to compile a list of their communications with their EEOC and litigation counsel.
In lieu of filing a Privilege Log, Plaintiffs’ counsel may file a declaration stating and describing:
(1) That Plaintiffs have made a diligent and good faith effort to locate and produce all relevant and non-privileged documents, including emails, responsive to Defendant[s’] requests. (2) The number, or a reasonable estimate of the number, of the privileged email communications that exist. (3) That Plaintiffs have reviewed the alleged attorney-client or work-product privileged emails to ensure that relevant, non-privileged email communications are not being withheld from production and that Plaintiffs’ counsel verifies that no arguably non-privileged email communications are being withheld. (4) In the ease of emails as to which the attorney-client [or work-product] privilege is claimed, the affidavit or declaration should include a verification that the emails were not provided to persons other than the client and attorney. If such communications were provided to non-clients, and the attorney-client [or work-produet] privileged is still claimed, then a privilege log consistent with [FRCP 26 ... ] should be provided.
Fifty-Six Hope Rd. Music, Ltd. v. Mayah Collections, Inc., No. 05 Civ. 1059(KJD)(GWF),
III. CONCLUSION
For the reasons stated above, Plaintiffs’ motion to compel discovery is granted in part and denied in part. Defendants’ motion to compel Plaintiffs to produce a privilege log is granted in part and denied in part. On or before November 12, 2013, the Parties must
SO ORDERED.
Notes
. LPL Financial Corporation acquired Independent Financial Marketing Group, Inc. in 2007. Id. ¶ 4; Answer ¶ 4.
. Details of the other Plaintiffs' complaints are not discussed in this Memorandum and Order because the withheld documents concern only Mr. Koumoulis’s complaints.
. Only one withheld document is dated around this time. See Privilege Log Doc. No. 55 (document dated Jan. 18, 2008).
. Privilege Log Document No. 30 refers to Lynette Sarno, Esq. ("Ms. Sarno”). The Parties have not explained Ms. Sarno's role in this matter or her employment relationship to Defendants.
. Plaintiffs assert that Defendants failed to plead any affirmative defense related to the sufficiency of their internal investigations.
. In their motion papers, Defendants refer to "Plaintiffs’ May 2008 EEOC Charge.” Id. It appears that "May 2008” is a typographical error because, in their Answer, the Defendants admitted that Mr. Koumoulis filed his EEOC Charge in or about March 2008. Answer ¶ 67; see Am. Compl. ¶¶ 9, 67.
. Defendants’ counsel stated, “We've produced the investigation file, the underlying documents, the witness interviews, all the e-mail correspondence. The only e-mails that have been withheld are e-mails with outside counsel that do not go to the fundamental basis of the internal investigation ....” Tel. Conference Tr. 16:2-14.
. In re Human Tissue Prods. Liab. Litig., No. 06 Civ. 135(WJM),
. The Parties have not addressed to which of Mr. Koumoulis’s claims this defense applies. As he alleges some tangible employment actions were taken against him — including his firing — the defense may not apply to all claims.
. This affirmative defense "does not apply in cases brought under the NYCHRL.” Zakrzewska v. New Sch., 620 F.3d 168, 170 (2d Cir.2010).
. See McGrath v. Nassau Cnty. Health Care Corp.,
. However, the court in Kaiser Foundation Hospitals still required the trial court to obtain detailed privilege logs and, where appropriate, con
. Plaintiffs incorrectly assert that this statement, made by Ms. Varón during Ms. Robertson’s deposition, constituted a universal waiver of privilege; the statement, in context, was specific to in-house counsel.
. Specifically, this Court reviewed Document Nos. 8-9, 21-22, 26-29, 31-39, 48-51, 53-54, and 57. See Ex Parte Letter from Ms. Varon to the Hon. Magistrate Judge Vera M. Scanlon (the "Ex Parte Letter”), Oct. 3, 2013, ECF No. 49 (containing Defendants’ letter to the Court and attached documents, filed under seal). Defendants also filed a copy of their Ex Parte Letter, without attachments, as ECF No. 48. The Clerk of Court may unseal ECF No. 48.
. This Court was not provided with and thus did not review the documents Plaintiffs identified as related to investigations of Plaintiffs' EEOC Charges. Such documents are likely privileged. See Angelone,
. In the Joint Letter, Defendants wrote that they did "not specifically address any information set forth in Plaintiffs' Exhibits [because] Plaintiffs did not provide [these exhibits] to Defendants in advance of [the] joint submission.” Joint Letter 9. Defendants have since had ample time to address Plaintiffs' exhibits or to request permission to do so. Defendants' submissions are therefore complete.
. This testimony suggests that outside counsel did not have a decision-making role, but the documents reviewed in camera and discussed below suggest otherwise.
. See Privilege Log Doc. Nos. 8 (request about documenting conversations), 22 (providing a draft email to Mr. Koumoulis to acknowledge receipt of his complaint), 32 (regarding encouraging Mr. Koumoulis to speak to Defendants and on how to respond to an email from him), 33 (asking whether a response should be in writing), 34 (sending Ms. Bradley four documents concerning the investigation, and asking her to edit one document), 35 (discussing the format of an investigative report and who would author it), 37 (suggesting a report be more specific), 48 (suggesting that certain information be written down), 49 (same as Document No. 37), 50 (concerning Mr. Koumoulis's work status), 51 (samе).
. See Privilege Log Doc. Nos. 8 (relating conversations with Mr. Mastropietro and Mr. Koumoulis), 9 (recounting what another employee said about the investigation process), 22 (summarizing a conversation with Mr. Koumoulis), 27 (specifying whom Ms. Mellon had contacted), 29 (relating Ms. Orsenigo’s conversation with Mr. Mastropietro), 33 (relating Ms. Bakke’s conversations with Mr. Koumoulis, Mr. Mastropietro and Ms. Allison Cooper ("Ms. Cooper"), an LPL employee), 36 (summarizing conversations with Mr. Koumoulis and other employees); 39 (concerning conversations between non-attorney employees and their conversations with Mr. Koumoulis); see also Privilege Log Doc. No. 38 (relaying information about Mr. Koumoulis’s performance).
. See Privilege Log Doc. Nos. 9 (instructions on what to say to Mr. Koumoulis and others), 27 (instructions on responding to Mr. Koumoulis’s complaint, including what to say to him concerning his work), 29 (identifying issues to explore and an email between human resources personnel delegating that task), 35 (providing revisions to a memorandum), 36 (concerning a report that Ms. Bradley requested be written), 37 (providing revised documents, per Ms. Bradley’s instructions), 39 (discussing how to close the human resources investigation), 48 (instructing Defendants on witnesses to interview, questions to ask, issues to research and other investigatory measures), 54 (Ms. Bakke’s list of questions to ask Mr. Koumoulis, purportedly based on questions from Ms. Bradley, see Joint Letter Ex. A at 7).
. Nor does writing "Attorney Client Communication" at the top of an email transform a summary of events and request for human resources-
. The mere fact that communications occurred after Mr. Koumoulis filed his EEOC Charge is not sufficient to render all post-Charge communications privileged. See Joint Letter 8; Walker,
. Drafts authored by outside counsel may also be discoverable. "Drafts of documents prepared by an attorney for subsequent transmission to third parties are protected by the attorney-client privilege only where the draft document contains confidential information communicated by the client to the attorney that is maintained in confidence.” S.E.C. v. Beacon Hill Asset Mgmt. LLC,
. Defendants cite to Kaiser Foundation Hospitals, in which the court denied discovery of ''specified discrete communications,” numbering less than forty pages, between an attorney and client. Kaiser Foundation Hospitals,
. Document No. 8 references a request by "Astoria’s” legal department. Defendants did not make any argument or provide information concerning whether this portion of the communication was privileged.
. Defendants should confirm with Plaintiffs that these underlying documents have been produced. See Privilege Log Doc. Nos. 8 (forwarding emails between Ms. Mellon and non-attorney employees), 9 (forwarding emails between Ms. Mellon and Mr. Koumoulis), 26 (forwarding emails from Mr. Koumoulis and emails between Ms. Mellon and other employees), 31 (forwarding an email between Ms. Bakke and Ms. Hunter), 32 (forwarding emails between Ms. Bakke and Mr. Koumoulis), 38 (forwarding emails among non-attorney employees). In addition, Documents Nos. 33 and 39 may be missing attachments. Defendants should assess the privilege of any missing attachments in light of this Memorandum and Order.
. The notes do not appear to contain privileged information, but are not completely legible.
. Plaintiffs allege they emailed Defendants a list of privileged redactions. See Joint Letter 5.