Fraser v. Avaya Inc. et al

Filing 129

ORDER Denying defendants' 123 Motion to Compel, by Judge Richard P. Matsch on 10/10/2013.(rpmcd )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 10-cv-00800-RPM
ROBERT FRASER,
Plaintiff,
v.
AVAYA INC., a Delaware corporation, and
THE AVAYA INC. SICKNESS AND ACCIDENT DISABILITY PLAN,
Defendants.

ORDER DENYING DEFENDANTS’ MOTION TO COMPEL

The defendants’ motion to compel (#123) seeks production of four documents which the
plaintiff has withheld on the ground that they reflect his privileged communications with union
representatives in connection with grievances that he filed regarding the termination of his
employment. Avaya argues that this court should not recognize any such “union member-union
representative” privilege or, alternatively, that the asserted privilege does not apply because no
grievance proceeding is pending.
“The burden of establishing the applicability of a privilege rests on the party seeking to
assert it.” In re Grand Jury Subpoena Duces Tecum, 697 F.2d 277, 279 (10th Cir. 1983).
Contrary to the defendant’s arguments, the plaintiff has shown both the existence of the asserted
privilege and its applicability to the disputed documents.
The asserted privilege arises from rights and duties created under the National Labor
Relations Act. An employee must be able to communicate candidly with union representatives
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about matters that are the subject of a grievance proceeding. See Cook Paint & Varnish Co., 258
NLRB1230 (1981).
The plaintiff’s response states that there is an ongoing dispute between the union and
Avaya over the timeliness of the plaintiff’s grievance and the issue of arbitrability has not been
resolved. Avaya is not entitled to discover the plaintiff’s communications with union officials
regarding his disputes with Avaya.
Accordingly, it is
ORDERED that the defendants’ motion to compel (#123) is denied.
Dated: October 10, 2013
BY THE COURT:

s/Richard P. Matsch
Richard P. Matsch, Senior District Judge

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