Davine et al v. The Golub Corporation et al

Filing 187

Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER Regarding Plaintiffs' Motion for In Camera Review of Documents Withheld by Defendants Based on Privilege. For the reasons stated, the court GRANTS Plaintiffs&# 039; motion for a court order requiring production of the documents withheld by Defendants on the basis of the attorney-client privilege and the work product doctrine, and rules as follows: Defendants are directed to produce the following documents listed in their privilege log within ten days of entry of this order:Privilege log entries 2-4;Privilege log entry 5; Privilege log entry 8 with the exception of the process proposal portion of the document, which may be redacted;Privilege log entry No. 9; andPrivilege log entry No. 11.Each party is to bear its own fees and costs. See attached Memo & Order for complete details. (Calderon, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SHELLY DEVINE, et al.
Plaintiffs
v.
THE GOLUB CORPORATION, et al.
Defendants.

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Civil Case No. 3:14-30136-MGM

MEMORANDUM AND ORDER REGARDING PLAINTIFFS’ MOTION FOR
IN CAMERA REVIEW OF DOCUMENTS WITHHELD BY DEFENDANTS
BASED ON PRIVILEGE
(Docket No. 145)
In this discovery dispute, Plaintiffs have asked the court to review in camera eleven
documents or categories of documents that defendants Golub Corporation, Price Chopper, Inc.,
Price Chopper Operating Co. of Massachusetts, and Neil M. Golub and Jerel Golub (“Price
Chopper” or “Defendants”) have withheld under claims of attorney-client privilege or the
attorney-client privilege and the work product doctrine. Plaintiffs ask that if the court concludes
that any of these documents are not privileged or otherwise protected from disclosure, the court
order Defendants to produce any such documents with redactions if appropriate.1 A copy of
Defendants’ privilege log is attached to this order (Dkt. No. 145-1).
I.

BACKGROUND

Plaintiffs allege that it is Price Chopper’s practice or policy to reduce its labor costs by
unlawfully classifying its so-called Team Leaders, also referred to as Department Managers, as
exempt employees not entitled to overtime pay for hours worked over forty (40) hours in a work

Defendants’ privilege log lists twelve documents or categories of documents that it declined to
produce on the basis of the attorney-client privilege or the attorney-client privilege and the work
product doctrine (Dkt. No. 145-1). Plaintiff initially requested in camera review and production
of all documents identified in the privilege log, but have, at this time, withdrawn that request as
to the twelfth entry on the log (Dkt. No. 157 at 1 n.1).
1

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week (Dkt. No. 52 at 1, ¶ 2). On the basis of this allegation, Plaintiffs bring claims under the
federal Fair Labor Standards Act (“FLSA”), the Massachusetts Wage Act, the New York Labor
Law, the Connecticut Minimum Wage Act, and the Pennsylvania Minimum Wage Act (id. at 12, ¶ 2). The parties are presently engaged in non-expert discovery related to these claims. The
dispute now before the court is about documents concerning an outside consultant’s analysis of
Price Chopper’s classification of its Department Managers for purposes of the FLSA and cognate
state statutes. According to William Kenneally, Esq., recently retired Price Chopper General
Counsel, in or around February 2011, after receiving a memorandum from employees in Price
Chopper’s human resources department, he decided that it was necessary for Price Chopper to
retain a consultant to assist him in analyzing the facts and circumstances relevant to the
compensation classification of Department Managers for purposes of FLSA compliance (Dkt.
No. 156-1 at 4, ¶¶ 7-9). Defendants’ privilege log shows that Mr. Kenneally received an
engagement letter from Saratoga Human Resources Solutions, Inc. (“SHRS”) on or around May
26, 2011 and that SHRS thereafter prepared a report regarding its study of store level Price
Chopper Department Managers (Dkt. No. 145-1 at 3-4) (“FLSA Audit” or “Audit Report”).
Plaintiffs seek the production of various documents related to the audit, which was conducted
with the assistance of employees in Price Chopper’s human resources department and completed
in 2011. After a hearing, the court concluded that the plaintiffs had raised more than a merely
speculative claim that the disputed documents were not privileged or otherwise protected and
that it could not resolve this discovery dispute without an in camera review. See Assoc. for
Reduction of Violence v. Hall, 734 F.2d 63, 66 (1st Cir. 1984) (party seeking production of
documents for which privilege or other form of protection is claimed must make threshold
showing of entitlement to discovery that is more than merely speculative). Defendants provided

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copies of the privilege log and the disputed documents to the court, which has conducted an in
camera review.
II.

ANALYSIS

“’The party invoking a recognized privilege has the burden of establishing, not only the
existence of that privilege, but also that the established privilege was not waived.’” Columbia
Data Prods., Inc. v. Autonomy Corp., Ltd., Civil Action No. 11-12077-NMG, 2012 WL
6212898, at *11 (D. Mass. Dec. 12, 2012) (quoting Cavallaro v. United States, 153 F. Supp. 2d
52, 56 (D. Mass. 2001), aff’d, 284 F.3d 236 (1st Cir. 2002)). Accordingly, Defendants have the
burden of showing that they are entitled to withhold production of the documents listed on the
privilege log on the basis of the attorney-client privilege or the work product doctrine.
The parties have not addressed what law determines the scope of the attorney client
privilege and any exceptions to it, although they have relied on federal case law in support of
their respective positions. Where, as here, jurisdiction is premised on a federal question and the
disputed documents constitute evidence related to the federal FLSA claims (as well as to the
pendent state law claims), federal common law, “as interpreted by United States courts in the
light of reason and experience” governs a claim of privilege. Fed. R. Evid. 501; see also United
States v. Mass. Inst. of Tech., 129 F.3d 681, 684 (1st Cir. 1997); Bank Brussels Lambert v. Credit
Lyonnais (Suisse) S.A., 160 F.R.D. 437, 441 (S.D.N.Y. 1995).
a. The attorney-client privilege and the third party exception
The First Circuit has instructed that the attorney-client privilege applies in the following
circumstances:
(1) Where legal advice of any kind is sought (2) from a professional legal
advisor in his capacity as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client, (6) are at his instance

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permanently protected (7) from disclosure by himself or by the legal adviser,
(8) except the protection be waived.
Cavallaro, 284 F.3d at 245 (quoting 8 J.H. Wigmore, Evidence § 2292, at 554 (McNaughton
Rev. 1961)). The privilege is well-established and serves important interests, but is nonetheless
narrowly construed because its invocation may hinder the search for truth. See Mass. Inst. of
Tech., 129 F.3d at 684-85. It “applies only to the extent necessary to achieve the goal of
ensuring effective representation though open communication between lawyer and client.” In re
Grand Jury Subpoena, 274 F.3d 563, 571 (1st Cir. 2001). In this case, Defendants assert the
privilege as to communications between Price Chopper’s General Counsel and Price Chopper
employees and among Price Chopper employees. Communications by corporate employees with
their employer’s in-house counsel concerning matters within the scope of an employee’s
corporate duties and made for the purpose of securing legal advice from in-house counsel are
protected by the attorney-client privilege. See Upjohn v. United States, 449 U.S. 338, 394
(1981). Communications among Price Chopper employees “that discuss or relay counsel’s legal
advice . . . are privileged to the extent that the employees are in a ‘need to know’ position or bear
some responsibility for the subject matter underlying the consultation.” In re Prograf Antitrust
Litig., No. 1:11-md-02242-RWZ, 2013 WL 1868227, at *2 (D. Mass. May 3, 2013) (citing Se.
Pa. Transp. Auth. v. Caremarkpcs Health L.P., 254 F.R.D. 253, 262 (E.D. Pa. 2008); Bank
Brussels Lambert, 160 F.R.D. at 442 (“[T]he privilege protects from disclosure communications
among corporate employees that reflect advice rendered by counsel to the corporation.”)). A
communication from one corporate employee to another may be privileged even though it does
not reflect counsel’s legal advice if the communication was about matters within the scope of the
employee’s duties and responsibilities, and “the employee was aware that the communication
was made in order to enable [Price Chopper’s] attorneys to provide legal advice to the
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corporation and understood that the [matter] to which the communication related was to be
treated as confidential.” Lewis v. Wells Fargo & Co., 266 F.R.D. 433, 444 (N.D. Ca. 2010)
(evaluating claims of attorney-client privilege and work product protection for documents related
to FLSA audit).
Defendants also have asserted that the attorney-client privilege protects the contents of
the Audit Report prepared by SHRS, documents related to preparation of the Audit Report, such
as an engagement letter between SHRS and Price Chopper’s General Counsel, and notes taken
by SHRS of its interviews with Price Chopper Store and Department Managers. The attorneyclient privilege applies to communications made in confidence between an attorney and a client.
Thus, an attorney’s communications with, or in the presence of, a third party, such as SHRS,
about the subject matter of the attorney’s legal representation generally are not protected by the
attorney-client privilege, nor are the third party’s communications with the client protected. See
Cavallaro, 284 F.3d at 246-47 (presence of a third party during attorney-client communication
often is sufficient to undermine confidentiality requirement). “An exception to this general rule
exists for third parties employed to assist a lawyer in rendering legal advice.” Id. at 247.
However, “[t]he circumstances under which the exception applies are limited.” Dahl v. Bain
Capital Partners, LLC, 714 F. Supp. 2d 225, 227 (D. Mass. 2010).
“The first element that must be satisfied in order for the exception to apply is that ‘the
third party communications must be “necessary, or at least highly useful, for the effective
consultation between the client and the lawyer which the privilege is designed to permit.”’”
Columbia Data Prods., Inc., 2012 WL 6212898, at *15 (quoting Dahl, 714 F. Supp. 2d at 227-28
(quoting Cavallaro, 284 F.3d at 247-48) (additional citations omitted)). It is not enough that the
attorney’s ability to advise the client is improved by the assistance of the third party. Rather, the

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involvement of the third party must serve some specialized purpose in facilitating the attorney’s
provision of legal advice to the client. See Cavallaro, 284 F.3d at 247-48; United States v.
Ackert, 169 F.3d 136, 139 (2d Cir. 1999) (attorney-client privilege did not protect
communications between attorney and investment banker despite assumption that the
communications significantly assisted the attorney in giving his client legal advice). Further,
communications with the outside party must be made for the purpose of providing or obtaining
legal rather than business advice. See Dahl, 714 F. Supp. 2d at 228; see also Cavallaro, 284
F.3d at 248-49.
2. The work product doctrine
The work product doctrine, first recognized by the Supreme Court in Hickman v. Taylor,
329 U.S. 495 (1947), and partially codified in Federal Rule of Civil Procedure 23(b)(3),
“’protects against disclosure of materials that a party, her attorney, or her representative prepares
in anticipation of litigation[.]’” Columbia Data Prods., Inc., 2012 WL 6212898, at *11 (quoting
In re Grand Jury Subpoena, 220 F.R.D. 130, 141 (D. Mass. 2004)). The work product doctrine
serves the purpose of preserving “a ‘zone of privacy’ in which a party, his attorney, and in many
cases his non-attorney ‘representative’ can prepare for litigation ‘free from unnecessary intrusion
by his adversaries.’” In re Grand Jury Subpoena, 220 F.R.D. at 141 (quoting United States v.
Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998)). The First Circuit requires a close connection
between the information for which work product protection is sought and litigation for which the
information is procured. While a document that serves both a business and a litigation purpose
may be protected as work product, see Columbia Data Prods., Inc., 2012 WL 6212898, at *11
(quoting Maine v. United States Dep’t of the Interior, 298 F.3d 60, 68 (1st Cir. 2002)),
[i]t is not enough to trigger work product protection that the subject matter of a
document relates to a subject that might conceivably be litigated. Rather, as the
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Supreme Court explained, the literal language of [Rule 26(b)(3)] protects
materials prepared for any litigation or trial as long as they were prepared by or
for a party to the subsequent litigation.
United States v. Textron, Inc. & Subsidiaries, 577 F.3d 21, 27 (1st Cir. 2009) (en banc) (quoting
Fed. Trade Comm’n v. Grolier Inc., 462 U.S. 19, 25 (1983) (emphasis in original)). In other
words, documents that are prepared to aid a corporation with its compliance obligations, rather
than because of pending or imminent litigation, are not protected by the work product doctrine.
See Lewis, 266 F.R.D. at 440.
As a preliminary matter, the court rejects Defendants’ reliance on the work product
doctrine as a basis for withholding production of the documents listed in their privilege log. In
support of their claim that Price Chopper prepared these documents in anticipation of litigation,
Price Chopper points to an FLSA lawsuit filed against Price Chopper in Vermont in 1999 and
decided on summary judgment in September 2000, and increased media attention regarding
alleged misclassifications of managers at other grocery store chains (Dkt. No. 156 at 6). The
FLSA Audit at issue here was commissioned in 2011, more than 10 years after judgment entered
for Price Chopper in the Vermont FLSA suit (Dkt. No. 146-1), and some three to four years
before the instant suit was filed (Dkt. No. 1). In view of the ten-year lapse in time between the
favorable resolution of the Vermont case and the commission of the FLSA Audit, the court
rejects Price Chopper’s contention that the Vermont case caused Price Chopper to commission
the FLSA Audit in anticipation of additional imminent FLSA litigation. The four-year lapse in
time between Price Chopper’s commission of the FLSA Audit and the filing of the instant case
also defeats any claim that documents listed on Defendant’s privilege log were created in
anticipation of the instant litigation See Lewis, 266 F.R.D. at 440 (where FLSA audit was
conducted a year before litigation commenced, documents were not created in anticipation of

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litigation and were not protected work product); Marceau v. IBEW Local 1269, 246 F.R.D. 610,
614 (D. Ariz. 2007) (fact that litigation was not imminent supports argument that FLSA audit
documents were not prepared in anticipation of litigation). “A generalized fear of litigation does
not turn a compliance audit into attorney work product.” Lewis, 266 F.R.D. at 441. Because it is
evident from the timing of the FLSA Audit and the contents of the documents that the audit was
commissioned for compliance purposes and not in connection with pending or imminent
litigation, none of the documents related to the FLSA Audit are protected work product.
3. Application of the attorney-client privilege
With these general principles in mind, the court turns to the specific documents in
dispute. Defendants have invoked the attorney-client privilege for all of the documents listed in
their privilege log (Dkt. No. 145-1). To the extent appropriate, the court has grouped documents
into categories for purposes of evaluating Defendants’ privilege claims. See Rivera v. Kmart
Corp., 190 F.R.D. 298, 302-04 (D.P.R. 2000).
a. Privilege log entry No. 1
Privilege log entry No. 1 is a memorandum from employees in Price Chopper’s human
resources department to Price Chopper’s General Counsel and another human resources
employee (Dkt. No. 145-1). It is marked “Attorney-Client Privileged,” and provides information
and seeks legal advice from the corporation’s General Counsel about matters within the scope of
the duties of the authors of the document. Under Upjohn, this document is obviously privileged
and was properly withheld in discovery as a protected attorney-client communication. See
Rivera, 190 F.R.D. at 302-03.
b. Privilege log entries Nos. 2-4

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Privilege log entries Nos. 2-4 are emails among Price Chopper human resources
employees. None of these documents is marked as privileged or confidential. The documents
are not from Price Chopper’s in-house counsel relaying legal advice to members of the human
resources department. They are not requests to counsel for legal advice, nor, so far as appears
from the face of the documents, do they reflect advice from the corporation’s General Counsel or
its legal department. See In re Prograf Antitrust Litig., 2013 WL, at *2. While the
communications are about matters within the scope of the employees’ duties and responsibilities,
there is nothing in the documents to indicate that the communications were made for the purpose
of gathering information that would assist Price Chopper’s attorneys to provide legal advice to
Price Chopper. See Lewis, 266 F.R.D. at 444. Privilege log entry No. 2 addresses concerns
about the applicability of the FLSA but is, at most, tangentially related to the FLSA Audit, while
privilege log entries Nos. 3 and 4 make only brief references to the FLSA Audit. The court
concludes that Defendants have not satisfied their burden of showing that these documents are
protected by the attorney-client privilege. See, e.g., Columbia Data Prods., Inc., 2012 WL
6212898, at *11. These documents must be produced to plaintiffs.2
c. Privilege log entry No. 5
Privilege log entry No. 4 is an April 17, 2011 email from one member of Price Chopper’s
human resources department to another member of the department and an April 18, 2011
response to the first email. The first email had as an attachment the document that is listed
separately as privilege log entry No. 5, which is described in the privilege log as “Store Manager

Privilege log entries Nos. 3 and 4 include discussion of a topic that may be completely
unrelated to this case and may warrant confidential treatment. If this is so, Defendants may
redact these documents to the extent they contain information not relevant to the claims presently
before the court.
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and Department Manager Discussion Points Prepared in Connection with Consultant’s Analysis
of Department Managers (Dkt. No. 154-1 at 2). There is no indication in privilege log entry No.
5, or in the email to which it was attached, that it was prepared at the direction of, or reviewed
by, in-house counsel. There is no indication in the documents (or otherwise) that members of the
human resources department sought legal advice about the content of the proposed discussion
points. There is no indication in the document listed as privilege log entry No. 5 that the
employees with whom the discussion points were to be reviewed would be told that the
information being requested was confidential or was being gathered to enable Price Chopper’s
attorneys to provide legal advice to their client. Contrast Upjohn, 449 U.S. at 394
(questionnaires filled out by Upjohn employees privileged when employees were told they were
being questioned in order that corporation could obtain legal advice and communications were
considered and treated as “highly confidential”); Deel v. Bank of Am., 227 F.R.D 456, 461
(W.D. Va. 2005) (draft of notice documents for employees were protected where documents
showed that defendant sent the notice document to outside counsel and sought legal advice
concerning the notice language). Further, “documents that contain ‘information which is to be
communicated to the public or others’. . . are not protected by the attorney-client privilege.”
Am.’s Growth Capital, LLC v. PFIP, LLC, Civil Action No. 12-12088-RGS, 2014 WL 1207128,
at *3 (D. Mass. Mar. 24, 2014) (quoting Pacamor Bearings, Inc. v. Minebea Co. Ltd., 918 F.
Supp. 491, 510 (D.N.H. 1996); citing In re Keeper of Records (Grand Jury Subpoena Addressed
to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003) (“When otherwise privileged communications are
disclosed to a third party, the disclosure destroys the confidentiality on which the privilege is
premised.”)). The discussion points in privilege log entry No. 5 were intended to be
communicated to others, i.e., employees of Price Chopper, without, so far as appears from the

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document, any caution to that audience about confidentiality or any indication that the
information was being solicited so that Price Chopper’s attorneys could provide legal advice to
their client. For these reasons, privilege log entry No. 5 is not protected by the attorney-client
privilege and must be produced.
d. Privilege log entries Nos. 6 and 7
Privilege log entry No. 6 is an email from a human resources employee to a group of
Price Chopper employees, including Price Chopper’s General Counsel and a paralegal,
convening a meeting to discuss a project outline – privilege log entry No. 7 – for the FLSA Audit
(Dkt. No. 145-1). Distribution of the document appears limited to corporate employees with a
need to know about the FLSA Audit. While the email and attachment do not indicate that they
are confidential or subject to the attorney-client privilege, there is no reason to believe that either
document was distributed to anyone other than the employees listed as recipients on the email.
In Deel, the presiding district judge concluded that documents of this kind were sent to “facilitate
legal services,” were protected by the attorney-client privilege, and were properly withheld in
discovery on this basis. See Deel, 227 F.R.D. at 460. This court concludes likewise. Defendants
are not required to produce privilege log entries Nos. 6 and 7.
e. Privilege log entry No. 8
Privilege log entry No. 8 is a proposal from the outside consultant defining the scope of
the work to be performed by the consultant for Price Chopper, sent to an employee in the human
resources department. The proposal provides that the purpose of the project is to assist Price
Chopper’s General Counsel in preparing legal advice for Price Chopper’s senior management
(Dkt. No. 145-1 at 2). It does not appear that Defendants disclosed the document to any Price
Chopper employee other than the human resources employee who received the proposal and

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Price Chopper’s General Counsel. Plaintiffs contend they are entitled to view this document
because the attorney-client privilege does not protect the fact of consultation with counsel or the
scope and nature of the engagement to provide, or to aid in providing, legal services (Dkt. No.
145 at 2 n.5). See Baez-Eliza v. Instituto Psicoterapeutico do Puerto Rico, 275 F.R.D. 65, 70-71
(D.P.R. 2011) (fact of legal consultation and purpose for which counsel was engaged were not
protected by the attorney-client privilege) (citing Humphreys, Hutcheson, & Moseley v.
Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985); Diversified Indus., Inc. v. Meredith, 572 F.2d
596, 603 (8th Cir. 1978); Howell v. Jones, 516 F.2d 53, 58 (5th Cir. 1975)). This principle
applies, but only in part, to privilege log entry No 8, which consists of 4 pages. The first page is
a memorandum from a Price Chopper human resources employee to SHRS enclosing two copies
of the client engagement agreement. The second page is the cover page from SHRS’s proposal
to Price Chopper. These pages disclose the fact of Mr. Kenneally’s consultation with a third
party for purposes of obtaining information to aid him in providing legal advice to his client,
Price Chopper. These two pages of privilege log entry No. 8, which disclose nothing more than
the fact of the consultation between Price Chopper’s General Counsel and the outside consultant,
are not privileged and must be produced. See, e.g., Moseley, 755 F.2d at 1219. Pages 3 through
4 set out the purpose of the consultation, followed by a proposed process for conducting the
FLSA Audit. The paragraph on page 3 that describes the purpose of the consultation is not
privileged and must be produced. See id. (scope and nature of employment is not privileged
information).
The remainder of pages 3 and 4 of privilege log entry No. 8, which describe the process
the consultant proposed to follow to provide information and assistance that would aid Price
Chopper’s General Counsel in analyzing a legal issue, is protected by the attorney-client

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privilege and may be redacted. Price Chopper’s former General Counsel has attested that Price
Chopper Human Resources employees sent him a memorandum seeking legal advice (privilege
log entry No. 1) that caused him to decide that it was necessary to seek assistance from an
outside consultant so that he could provide competent legal advice to the company about the
questions raised in the memorandum (Dkt. No. 156-1 at 4, ¶¶ 7-9). In the opinion of the General
Counsel, the outside consultant possessed knowledge and experience that surpassed the
knowledge and experience available within the corporation, either in Price Chopper’s human
resources department or its legal department. The General Counsel believed that such
knowledge and experience was critical to counsel’s ability to provide sound legal advice to his
client (id., ¶¶ 8-9). The court has no basis or reason to doubt or second guess the General
Counsel’s assessment that he needed the services of a specialized consultant to be able provide
competent legal advice about FLSA compliance to his client and does not have a basis to
substitute its judgment for that of Price Chopper’s General Counsel. Cf. Mass. Mut. Ins. Co. v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 293 F.R.D. 244, 253-54 (D. Mass. 2013) (if the
purpose of the attorney-client privilege is to be served, the attorney and the client should have
some degree of certainty about what is protected by the privilege). The court concludes,
therefore, that the consultant was “’necessary, or at least highly useful, for the effective
consultation between the client [Price Chopper] and the lawyer [Price Chopper’s General
Counsel] which the privilege is designed to permit.’” Cavallaro, 284 F.3d at 247 (quoting
United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961)).
While Plaintiffs seek to characterize the classification of an employee or a particular
position for FLSA purposes as a business decision, this is a decision that must comply with
relatively complex statutory and regulatory requirements and guidance issued by the Department

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of Labor. The FLSA Audit was conducted to assist Price Chopper’s General Counsel to advise
his client such that the client could avoid legal liability for failure to comply with statutory and
regulatory requirements. “As such, [Price Chopper] clearly [commissioned the FLSA Audit] to
facilitate legal services,” Deel, 227 F.R.D. at 460, and substantive communications from the
consultant to Price Chopper made for this purpose are protected by the attorney-client privilege.
As an alternative basis for production of documents as to which Defendants have asserted
the attorney-client privilege, Plaintiffs contend that Defendants have forfeited reliance on the
attorney-client privilege as to the FLSA Audit documents by pleading a good faith defense to the
FLSA and related state law claims. In their answer, Defendants assert as their third affirmative
defense that “Plaintiffs’ claims are barred to the extent that Defendants’ actions have been taken
in good faith in conformity with and reliance upon established rulings, administrative regulations
and interpretations and/or advice of counsel” (Dkt. No. 60 at 20, ¶ 166). As their seventh
affirmative defense, Defendants assert that “Plaintiffs cannot establish that any of the acts or
omissions of Defendants were willful under the FLSA or willful and intentional under the
NYLL, MWA, CMWA, PMWA, or any other applicable state law. By reason of the foregoing,
Plaintiffs . . . are not entitled to liquidated damages under the FLSA, NYLL, MWA, CMWA,
PMWA, or any other applicable state law” (id. at 21, ¶ 170). Defendants purport to invoke these
affirmative defenses without “assuming any burden of production or proof they would otherwise
have” (id. at 19).
In support of their position Plaintiffs rely primarily on Scott v. Chipotle Mexican Grill,
Inc., 67 F. Supp. 3d 607 (S.D.N.Y.), an FLSA case where the defendant invoked the same good
faith defenses as are here asserted by Price Chopper. See id. at 609. Concluding that Chipotle
possessed advice of counsel about the job classifications being challenged (an issue that was

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disputed), the court held that “[w]here the defendant has clearly benefited from the advice of
counsel on the very issue on which it asserts good faith, it puts the relevant attorney-client
communications at issue and thereby waives its privilege.” Id. at 618. Defendants respond that
the court should not find an implied waiver of the attorney-client privilege when they do not
intend to base their good faith defense on the contents of the Audit Report and have not
selectively disclosed portions of the report to support their claim of good faith (Dkt. No. 156 at
10-11).
The First Circuit has said that “courts should be cautious about finding implied waivers.”
In re Keeper of Records, 348 F.3d at 23. “Such waivers are almost invariably premised on
fairness concerns.” Id. at 24. A party may impliedly waive attorney-client confidentiality “if
‘(1) assertion of the privilege was a result of some affirmative act such as filing suit, by the
asserting party; (2) through this affirmative act, the asserting party put the protected information
at issue by making it relevant to the case; and (3) application of the privilege would . . . [deny]
the opposing party access to information vital to his defense.’” Savoy v. Richard A. Carrier
Trucking, Inc., 178 F.R.D. 346, 350 (D. Mass. 1998) (quoting Hearn v. Rhay, 68 F.R.D. 574, 581
(E.D. Wash. 1975)).
‘The courts have identified a common denominator in waiver by implication: in
each case, the party asserting the privilege placed protected information in issue
for personal benefit through some affirmative act, and the court found that to
allow the privilege to protect against disclosure of that information’ would have
been unfair to the opposing party.
In re Keeper of Records, 348 F.3d at 24 (quoting J.B. Weinstein & M.A. Berger, Weinstein’s
Federal Evidence § 503.41[1] (J.M. McLaughlin ed. 1997)).
The Price Chopper defendants have not placed counsel’s advice at issue by an affirmative
act. They have asserted a defense of good faith, but they have not, at least thus far, invoked

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advice of counsel as a basis for that defense. Instead, they have disclaimed any intention of
relying on the Audit Report to support their good faith defense and identified non-privileged
information (the Vermont FLSA opinion) on which they intend to rely to establish the defense.
Compare id., 348 F.3d at 24 (paradigmatic example of implied waiver occurs when party
invokes advice of counsel as a defense). Where Defendants: (1) are not planning on using the
substance of their counsel’s opinions as a defense; (2) have consistently asserted the attorneyclient privilege as to documents related to the FLSA Audit; and (3) have not selectively disclosed
portions of counsel’s advice to obtain an advantage in this litigation, there is no implied waiver
of the attorney-client privilege. See Cue, Inc. v. Gen. Motors LLC, CIVIL ACTION NO 1312647-IT, 2015 WL 4750844, at *8-9 (D. Mass. Aug. 10, 2015) (finding no implied waiver of
privilege where defendant did not selectively disclose privileged information and did not intend
to rely on advice of counsel to support good faith defense). However, this ruling is without
prejudice; “nothing herein shall preclude [Plaintiffs] from renewing [their] waiver argument if
[Defendants] attempt[] to raise an advice of counsel defense at any future point in this case.” Id.,
at *9.
For the foregoing reasons, Price Chopper is entitled to redact the portion of privilege log
entry No. 8 that sets out the process the consultant intended to follow to provide commissioned
services to Price Chopper.
f. Privilege log entry No. 9
Privilege log entry No. 9 is the client engagement agreement signed by Price Chopper’s
General Counsel and the consultant, which discloses the fact, terms, and scope and nature of the
consultant’s employment by Price Chopper. The fact, scope, and nature of legal consultation are

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not privileged. See Baez-Eliza, 275 F.R.D. at 71. Accordingly, the plaintiffs are entitled to
production of privilege log entry No. 9.
g. Privilege log entry No. 10
Privilege log entry No. 10 is the SHRS Audit Report (Dkt. No. 145-1 at 4). The Audit
Report is protected by the attorney-client privilege for the reasons set forth above in connection
with privilege log entry No. 8. Accordingly, Price Chopper is not required to produce the
document at this time. This ruling is, again, without prejudice to Plaintiffs’ renewal of their
waiver argument if Defendants seek to rely on the FLSA Audit in support of their good faith
defense. See Cue, Inc., 2015 WL 4750844, at *9.
h. Privilege log entry No. 11
Most of the documents at privilege log entry No. 11 are interview notes written by the
SHRS consultant during interviews of Price Chopper employees that were conducted for
purposes of preparing the Audit Report (Dkt. No. 145-1 at 4). Also included is a document
captioned “FLSA Talking Points for Department Managers,” with handwritten notes, and a
separate uncaptioned list of questions possibly intended for Store Managers. In Upjohn, the
Supreme Court addressed the issue of employee responses to corporate questioning.3 After
Upjohn learned about illegal payments made by a subsidiary to secure business from a foreign
government, the company, through its lawyers, conducted an internal factual investigation about
the extent of so-called questionable payments so that the lawyers would be in a position to give
legal advice to the company. Upjohn, 449 U.S. at 386, 394. The questionnaire Upjohn

In Upjohn, employees filled out written questionnaires rather than answering questions posed to
them orally. See Upjohn, 449 U.S. at 386-87. Here, it appears that employees were interviewed
orally and notes taken of their responses to what was, in effect, a questionnaire about their duties,
responsibilities, and hours worked. This is a distinction without a difference.

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employees were asked to fill out concerned matters within the scope of employees’ corporate
duties, identified the person gathering the information as Upjohn’s General Counsel, and referred
to the possible illegality of the payments about which information was sought. “A statement of
policy accompanying the questionnaire clearly indicated the legal implications of the
investigation[,]” and the questionnaire informed employees that Upjohn intended to comply with
the laws banning illegal payments to foreign nationals. The questionnaires were considered
highly confidential and were treated as such. Id. at 394-95. Based on these factors, the Court
held that the questionnaires completed by Upjohn employees “must be protected against
compelled disclosure.” Id. at 395; see also Deel, 227 F.R.D. at 461 (identifying facts that were
basis of Court’s privilege conclusion in Upjohn).
In the instant case, as in Deel, Price Chopper’s position was similar to Upjohn’s, but it
did not take the same forthright steps to inform its employees about the purposes for which it
was gathering information. Privilege log entry No. 5, and the FLSA Talking Points for
Department Managers document along with the uncaptioned list of questions in privilege log
entry No. 11 constitute the evidence before the court of the information that was communicated
to employees interviewed by SHRS. According to privilege log entry No. 5, Store Managers
were to be told that Price Chopper was studying the Department Manager position to determine
if the work these employees performed continued to meet the criteria that would qualify them as
exempt under FLSA criteria, and that the company “wanted to make certain that we are properly
compensating this group.” Even less information was to be conveyed to Department Managers:
they were to be told that the company periodically studied different pay groups to ensure that the
company accurately understood the duties the employees performed and was properly
compensating them. The FLSA was not to be mentioned to Department Managers. From the

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separate uncaptioned list of questions to be posed to Store and Department Managers that
appears in privilege lot entry No. 11, it appears that, when employees were interviewed, they
may in fact have been given no context or reasons for the questions being posed to them.
So far as appears from the relevant documents, Price Chopper employees were not told
that the company was soliciting information from them on behalf of Price Chopper’s General
Counsel; that the company was concerned about potential legal liability under the FLSA and
related statutes; that the information was being gathered so that Price Chopper’s counsel could
provide legal advice to the company; or that the communications were highly confidential. A
reasonable conclusion from privilege log entry No. 5 and the lists of questions that are included
in privilege log No. 11 is that, following FLSA litigation involving other grocery store chains,
Price Chopper did not want to alert its employees to the fact that it had concerns about FLSA
compliance and that its General Counsel was seeking information for purposes of providing legal
advice about the classification of the Department Manager position to the company. In this case,
as in the Deel case, “the failure to provide proper notice means that [Price Chopper] cannot
prevent the [Plaintiffs] from discovering [the notes of interviews with employees] based on the
attorney-client privilege.” Deel, 227 F.R.D. at 462.4
III.

CONCLUSION

For the foregoing reasons, the court GRANTS Plaintiffs’ motion for a court order requiring
production of the documents withheld by Defendants on the basis of the attorney-client privilege

A one-page document captioned “Process Proposal: Department Manager FLSA Evaluation” is
also included in privilege log entry No. 11. This document is similar, but not identical, to the
portion of privilege log entry No. 8 that this court has ruled is protected by the attorney-client
privilege and need not be produced. Because of this similarity and the likelihood that this
document was not distributed outside of a small circle of Price Chopper employees involved in
the FLSA Audit, Defendants may redact this page of privilege log entry No. 11.
4

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and the work product doctrine, and rules as follows: Defendants are directed to produce the
following documents listed in their privilege log within ten days of entry of this order:


Privilege log entries 2-4;



Privilege log entry 5;



Privilege log entry 8 with the exception of the process proposal portion of the document,
which may be redacted;



Privilege log entry No. 9; and



Privilege log entry No. 11.

Each party is to bear its own fees and costs.
It is so ordered.
Dated: February 8, 2017

/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
U.S. MAGISTRATE JUDGE

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