DECISION AND ORDER
Plaintiff, Fredrick Scholtisek, commenced this action against his former employer, Eldre Corporation (“Eldre”), alleging that Eldre has violated the Fair Labor Standards Act, 29 U.S.C. § 201
et
seg., and the New York Labor Law by willfully making impermissible deductions from the pay of employees who are paid on a salary basis. Plaintiff seeks declaratory relief and money damages, on behalf of himself and all other similarly situated employees. The Court has previously certified this action as a class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure, and directed that notice of plaintiffs claims be sent to all class members.
In anticipation of trial, Eldre has filed a motion
in limine
seeking an order precluding the use of any testimony concerning certain conversations between Kathleen Davis, Eldre’s former Human Resources Manager, and Arthur Abelson,
BACKGROUND
Davis testified at her deposition that her duties as Human Resources Manager included screening and interviewing job applicants, conducting exit interviews, helping employees obtain benefits, explaining their benefits to them, and generally acting as a liaison between employees and management. Dkt. # 154 Ex. G at 20. She was not primarily responsible for handing Eldre’s payroll, though she served as a backup for the person who did handle the payroll. Id. at 20, 78.
Davis helped type Eldre’s 1999 revised handbook for exempt employees (which contained various information about El-dre’s wage and hour policies and practices), but she did not make decisions with respect to the policies set forth in the handbook. Id. at 25, 41.
At one point, Davis testified that on a certain occasion in about the second or third year of her employment at Eldre, she “had an employee get angry because their pay was docked.” Id. at 39. She stated that she “went to Mr. Abelson at the time with the employee’s complaint, and [she] was told that this handbook had been gone over by the company’s attorneys and everything in it was legal.” Id. 1 It is this conversation to which Eldre objects.
Davis testified that she told Abelson that she “d[id]n’t recall seeing a policy like that before for a salaried employee.” Dkt. # 161 Ex. A at 44. The policy she was referring to was Eldre’s policy of docking salaried employees’ pay for partial-day absences. Id. at 43, 46. Davis stated that she “wanted to get an answer [from Abelson] to have something to say to this employee to hopefully make them understand that this was company policy and, you know, that was it.” Id. at 45.
After plaintiffs’ attorney had asked her a few more questions about this topic, Eldre’s attorney stated, “I think I just want to put an objection on the record to preserve an argument that any conversations with Mr. Abelson regarding attorneys is [sic] protected by the attorney/client privilege by virtue of Miss Davis’ position.” Id. at 47. Plaintiffs’ attorney responded, “Obviously we’ll be litigating that at a later point....” Id.
DISCUSSION
I. Privileged Communications
Defendant contends that Abelson’s alleged statements to Davis that Eldre’s attorneys had reviewed the company handbook and that “everything in it was legal” are protected by the attorney-client privilege. Plaintiffs contend that Eldre has waive the privilege with respect to those statements, in a number of ways.
Before reaching the issue of waiver, though, there is a threshold question whether any privileged information was transmitted by Abelson to Davis in the first place. I am not convinced that it was.
To invoke the attorney-client privilege, a party must demonstrate that
There are several problems with Eldre’s assertion of the privilege here. First, it has not been established that there
was
a “communication between client and counsel” concerning Eldre’s pay-docking policies.
See In re Subpoena of Curran,
No. 3:04-MC-039,
In addition, even taking Abelson at his (alleged) word that Eldre’s attorneys had gone over the employee handbook, he never said that the attorneys had stated that everything in the handbook was legal. According to Davis, Abelson told her only that (1) the attorneys had reviewed the handbook and (2) everything in it was legal.
Taken together, those two statements might reasonably be interpreted as implying that the attorneys had told Eldre that everything in the handbook was legal, but that conclusion is not inescapable. It could also reasonably be inferred to mean only that the attorneys had not, to Abelson’s knowledge, stated that anything in the handbook was il legal, and that it was simply Abelson’s own opinion that everything in it was legal.
As stated, the burden of establishing the applicability of the privilege is on Eldre, and because of that, any ambiguities are to be construed against Eldre.
See, e.g., Matter of Grand Jury Empanelled February 14, 1978,
II. Waiver
Even if Abelson’s alleged statements were taken to mean that Eldre’s attorneys had given the employee handbook their imprimatur, I find that any privilege that had attached to such communications was waived when Abelson related them to Davis. 2
There is case law to the effect that disclosure of an attorney’s advice by one corporate employee to another does not necessarily waive the privilege if there is a genuine need for such disclosure, such as where the recipient has some responsibility for the area to which the advice relates.
See, e.g., Strougo v. BEA Associates,
In general, whether the dissemination of privileged communications to corporate employees vitiates the privilege is decided by applying a “need to know” standard: did the recipient need to know the content of the communication in order to perform her job effectively or to make informed decisions concerning, or affected by, the subject matter of the communication?
See, e.g., Deel v. Bank of America, N.A.,
“The ‘need to know’ must be analyzed from two perspectives: (1) the role in the corporation of the employee or agent who receives the communication; and (2) the nature of the communication, that is, whether it necessarily incorporates legal advice. To the extent that the recipient of the information is a policymaker generally or is responsible for the specific subject matter at issue in a way that depends upon legal advice, then the communication is more likely privileged.”
Verschoth v. Time Warner Inc.,
No. 00CIV1339,
In this area, too, the burden rests upon the party claiming the privilege. “The burden is on the corporation asserting the privilege to show that it preserved the confidentiality of the communication by limiting dissemination only to employees with a need to know.”
Bank of New York v. Meridien Biao Bank Tanzania Ltd.,
No. 95 Civ. 4856,
Here, I do not believe that Eldre has demonstrated that Davis needed to know that Eldre’s attorneys had gone over the employee handbook and opined that the policies it contained were all in compliance with the law. Davis had no policymaking authority in this area, nor did she make decisions affecting employees’ pay. Abelson could therefore simply have assured her that the policy in question was lawful and left it at that.
More to the point, though, even if Abelson thought that it was important for Davis to understand the basis for his assertion that Eldre’s practices were lawful, he implicitly authorized Davis to tell the complaining employee what Abelson had said. 3 Davis — whose duties included “explaining] benefits and company rules [and] policies” to employees and acting as “a liaison between the employees and upper management if employees had questions or problems,” Dkt. # 154 Ex. G at 20-testifíed that she had gone “to Mr. Abelson ... with the employee’s complaint” about his pay being docked. Id. at 39. She testified that she “sa[id] to Mr. Abelson that [Davis] d[id]n’t recall seeing a policy like that before for a salaried employee,” and that is when Abelson responded that “the handbook had been gone over by the company attorneys and that everything in it was legal.” Dkt. # 161 Ex. A at 44, 45.
When asked why she had made that statement about not having seen such a policy before, Davis replied, “Well, I did have an angry employee on my hands.” She added that she “wanted to get an answer to have something to say to this employee to hopefully make them understand that this was company policy and, you know, that was it.” Id. at 45.
In short, then, Davis was faced with an employee who was angry about a particular pay policy, and she went to Abelson “to get an answer” so that she would “have something to say to [the] employee” in response to his complaint. Under those circumstances, what Davis “needed to know” was what to tell the employee. By telling Davis that Eldre’s attorneys had vetted the employee handbook, Abelson in effect authorized her to pass that information on to the employee. If Abelson had intended that she not repeat his statements to the employee, or that she give the employee a different answer than the one that Abelson had given Davis, one would certainly have expected him to tell her so. I therefore conclude that to the extent that Abelson’s alleged statement to Davis contained privileged information, that privilege has been waived. 4
Defendant’s motion in limine (Dkt.# 152) is denied.
IT IS SO ORDERED.
Notes
. Davis also testified that it was her recollection that after the revised handbook had been typed up, "it [went] off to the company attorneys to be reviewed,” though she could not remember who told her that. Id. at 41-42.
. I am not persuaded by plaintiffs' contention that Eldre waived the privilege by not timely objecting at Davis’s deposition, and by not objecting when other witnesses were asked about attorney review of Eldre’s policies and handbooks. Although counsel may not have immediately objected when plaintiffs' attorney began asking Davis about her conversation with Abelson, he did object during the general course of her testimony on that subject, and since it was not initially apparent that Davis would begin testifying about potentially privileged communications, I find that his objection was timely made.
Cf. Kraemer v. Franklin & Marshall College,
No. CIV.A. 95-0020,
Likewise, the fact that counsel did not object to certain questions to, and testimony by, other witnesses did not waive the privilege. In general, those witnesses testified that Eldre had
not
obtained any legal advice concerning Eldre’s hour and wage policies prior to this lawsuit.
See, e.g.,
Dkt. #154 Ex. C at 67; Ex. E at 28; Ex. F at 30. Since the general nature of an attorney’s services, or the mere fact of legal consultation, is not protected by the privilege, there was no basis for objecting to these questions.
See GFI, Inc. v. Franklin Corp.,
. Eldre does not appear to contend that Abelson, who was Eldre's Executive Vice President, lacked authority to waive the privilege.
See Commodity Futures Trading Comm’n v. Weintraub,
. Defendant’s motion in limine is based solely on the ground that Abelson’s alleged statements to Davis were privileged, and that is the only issue that the Court decides in this Decision and Order. Any other issues concerning the admissibility or use of this evidence at trial will be addressed, as necessary, at trial.
I also note that in their response to defendant’s motion, plaintiffs now contend that in
On its face, defendant's motion is limited to "precluding the use of any testimony concerning conversations between Kathleen Davis and Arthur Abelson regarding legal advice or opinions from Defendant’s attorneys ...” Dkt. # 152, so there is no issue before me at this point concerning this alleged statement by Moss. If the statement was made as alleged by plaintiffs, however, it would certainly seem to waive attorney-client privilege as to its contents, and plaintiffs may inquire about it at trial.