Aboudara v. City of Santa Rosa

Filing 57

ORDER DENYING MOTION TO COMPEL. Signed by Magistrate Judge Jacqueline Scott Corley on 1/22/2018. (ahm, COURT STAFF) (Filed on 1/22/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

TIMOTHY ABOUDARA, JR.,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No.17-cv-01661-HSG (JSC)
ORDER DENYING MOTION TO
COMPEL

v.
CITY OF SANTA ROSA,

Re: Dkt. No. 56

Defendant.

12
13

In this Fair Labor Standards Act case Plaintiff asserts that Defendant improperly failed to

14

include holiday-in-lieu compensation in the “regular rate of pay” for purposes of calculating

15

overtime. The action has been referred to this Court for resolution of discovery disputes. (Dkt.

16

No. 37.) Now pending before the Court is Plaintiff’s motion to compel Defendant to produce

17

discovery regarding legal advice it received about whether it should include the holiday-in-lieu

18

compensation in the regular rate of pay. (Dkt. No. 56.) Upon consideration of the parties’ Joint

19

Letter Brief, the Court concludes that oral argument is unnecessary, see Civ. L. R. 7-1(b), and

20

DENIES Plaintiff’s request.

21

“Where a party raises a claim which in fairness requires disclosure of the protected

22

communication, the privilege may be implicitly waived.” Chevron Corp. v. Pennzoil Co., 974

23

F.2d 1156, 1162 (9th Cir. 1992). Defendant’s willfulness is an issue in this case. If Plaintiff

24

proves Defendant violated the FLSA and that the violation was willful, that finding lengthens the

25

statute of limitations and requires an award of liquidated damages. 29 U.S.C. § 255(a); 29 U.S.C.

26

§ 260. Accordingly, in its Amended Answer Defendant raises an affirmative defense of good faith

27

and specifically alleges that it acted in good faith because, among other things, “Defendant

28

1

consulted with legal counsel regarding its FLSA compliance.” (Dkt. No. 31 at 8:4-5.1) There is

2

no question that this reliance on the advice of legal counsel waives the privilege as to that advice.
Since the filing of its Amended Answer, however, Defendant has had a change of heart and

3
4

has decided not to rely on any advice of counsel. When Ms. Keeton was deposed, Defendant

5

prohibited her from answering any questions as to advice she received and Defendant has refused

6

to produce any documents reflecting such advice. It asserts that it has offered to stipulate that it

7

will not in any way rely on advice of counsel in support of its good faith defense and will move to

8

amend its answer if need be. Plaintiff does not dispute this offer, but instead maintains that

9

Defendant’s good faith defense in itself waives the privilege. The Court disagrees.
To accept Plaintiff’s argument would mean that any time a defendant disputes a plaintiff’s

10

United States District Court
Northern District of California

11

willfulness allegation the plaintiff would be entitled to discovery regarding any legal advice the

12

defendant received on the relevant issue. The defendant would therefore, in effect, be required to

13

admit to willfulness (assuming an FLSA violation is found) if it wanted to maintain its attorney-

14

client privilege. In a patent infringement action, for example, a defendant would waive any

15

attorney-client privilege as to any invalidity opinion it received from counsel, even if the

16

defendant had no intent to rely on advice of counsel as a defense to willfulness. Again, the

17

defendant would therefore have to concede willfulness or else waive the privilege. Such a

18

consequence would discourage parties from obtaining legal advice in the first instance, and thus

19

run contrary to the very purpose of the attorney-client privilege. See Upjohn Co. v. United States,

20

449 U.S. 383, 389 (1981). To the extent the out-of-circuit district court cases cited by Plaintiff

21

hold to the contrary, this Court simply disagrees. The Ninth Circuit has never held that merely

22

asserting good faith waives the attorney-client privilege as to communications with counsel

23

regarding the topic at issue. This Court, too, declines to do so.
The outcome of this motion might be different if Defendant had followed up on its

24
25

affirmative defense with reliance on the fact that it sought advice of counsel in its discovery

26

responses. But Plaintiff does not point to any such reliance and does not otherwise identify how it

27
1

28

Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the documents.
2

1

would be prejudiced by allowing Defendant to withdraw its statement in its Amended Answer. Of

2

course, Defendant is now bound by its current representation and may not in any way rely on the

3

fact that legal advice was sought.

4

This Order disposes of Docket No. 56.

5

IT IS SO ORDERED.

6

Dated: January 22, 2018

7
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

8
9
10

United States District Court
Northern District of California

11
12
13

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3