Boudreaux et al v. Schlumberger Tech Corp

Filing 523

MINUTES for proceedings held before Magistrate Judge Carol B Whitehurst:TELEPHONE MOTION HEARING held on 1/5/2021 re 511 MOTION for Protective Order MOTION to Quash filed by Schlumberger Technology Corp. Considering the foregoing, th e Motion for Protective Order (Doc. 511 ) was DENIED, with these cautions in place. With respect to the subpoenaed documents, to the extent that STC has specific objections to specific document requests, STC is ordered to produce a privilege log identifying which documents are protected by the privilege. It was FURTHER ORDERED that the parties shall file a proposed joint amended scheduling order within 10 days of the date of this ruling. (crt,Chicola, C)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
BROCK BOUDREAUX, ET AL..

CIVIL ACTION NO. 14-2267

VERSUS

JUDGE SUMMERHAYS

SCHLUMBERGER TECH CORP.

MAGISTRATE JUDGE
WHITEHURST

MINUTES, RULING AND ORDER
On January 5, 2021, the undersigned conducted a telephone status conference
from 3:00 p.m. to 3:30 p.m.1 to discuss the pending Motion for Protective Order
[Doc. 511] filed by Schlumberger Technology Corp. (“STC”) and the effect of that
motion on the discovery and dispositive motion deadlines in this case. Participating
in the conference were Michael Josephson and Kenneth Dejean for the plaintiffs and
Robert Lombardi and Bryan Bowdler for STC.
Plaintiffs seek to depose five witnesses concerning their knowledge of
information related to STC’s FLSA reviews, including knowledge of the underlying
facts supporting classification reviews conducted by STC’s compensation
department. In its motion, STC seeks to prevent the depositions of Eeksha Kohli,
Na Woo Kim, and Ricardo Carossino and to quash the subpoenas issued to James
Hanley and Renee Koch. STC also seeks to prevent the depositions of Hanley and

1

Statistical time: 30 mins.

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Koch. STC argues that the information sought to be discovered by plaintiffs is
protected by the attorney-client privilege, because the individual who coordinated
the compensation reviews in question was an attorney.
In Upjohn Company v. United States, 449 U.S. 383, 395-96, 101 S.Ct. 677,
66 L.Ed.2d 584 (1981), the Supreme Court made clear that “[t]he attorney-client
privilege does not protect against discovery of underlying facts from their source
merely because those facts have been communicated to an attorney.” Indeed, the
Fifth Circuit’s writ of mandamus in this matter shielded from discovery only
“attorney-client communications” and ultimate determinations made pursuant to the
advice of counsel. See In re Schlumberger Technology Corp., 818 Fed. Appx 304,
307 (5th Cir. 2020).
Here, STC has claimed it was not relying on the advice of counsel to support
its good faith defense. See Ex. 8 at Interrogatory Nos. 3, 5-6; Ex. 9 at Interrogatory
Nos. 11-13. Instead, STC swore under penalty of perjury that the primary basis for
STC’s claim that it acted in good faith related to work performed by its compensation
department. Id. Specifically, STC claimed it acted in good faith based on: (1) STC’s
belief the directional drillers were exempt which “is/was based on compensation
reviews conducted by the compliance department in 2004 and a follow up in 2008
after the enactment of new regulations;” (2) the fact that “personnel in STC’s
compliance department periodically receive training in the [FLSA]…have access to
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the Department of Labor website which contains regulations and other material that
they may consult…[and] “also has access to Society for Human Resource managers
materials;” (3) the fact “the compensation department annually undertakes a
compensation review;” and (4) the fact “[c]hanges in the industry or complaints or
changes in duty would be reviewed by the Compensation Department for
determination if additional action was necessary.” Ex. 8 at Interrogatory Nos. 3, 56. STC has not amended or supplemented its responses to the foregoing discovery
requests.
The plaintiffs are entitled to test the merits of STC’s good faith and exemption
defenses. Thus, in light of the foregoing, and after hearing the arguments of all
counsel, the undersigned concluded that STC did not meet its heavy burden of
showing extraordinary circumstances exist meriting quashing the depositions at
issue. See Salter v. Upjohn Co., 593 F.2d 649, 650-51 (5th Cir. 1979). The
undersigned concluded that the depositions should be allowed to go forward, with
counsel for plaintiffs cautioned that they will have to carefully tailor their questions
so as not to ask questions that might divulge privileged information. Individual
objections to specific questions should be made at the time of the deposition.
Considering the foregoing, the Motion for Protective Order [Doc. 511] was
DENIED, with these cautions in place. With respect to the subpoenaed documents,
to the extent that STC has specific objections to specific document requests, STC is
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ordered to produce a privilege log identifying which documents are protected by the
privilege.
It was FURTHER ORDERED that the parties shall file a proposed joint
amended scheduling order within 10 days of the date of this ruling.
Signed at Lafayette, Louisiana on the 7th day of January, 2021.

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