Garcia v. Completely Kids

Filing 36

MEMORANDUM AND ORDER that Defendant's Motion for Protective Order 27 is granted. Ordered by Magistrate Judge Cheryl R. Zwart. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHANNAN L. GARCIA,
Plaintiff,

8:14CV119

vs.
MEMORANDUM AND ORDER
COMPLETELY KIDS,
Defendant.
This matter is before the court on Defendant’s Motion for Protective Order, (Filing
No. 27). For the reasons stated below, Defendant’s Motion will be granted.

STATEMENT OF FACTS

On October 5, 2012, Plaintiff Shannan Garcia was terminated from her employment
with Defendant Completely Kids. Prior to terminating Plaintiff, Defendant consulted with its
legal counsel, Margaret Hershiser (“Hershiser”) who is Defense counsel in the current
litigation.
The week preceding Plaintiff’s termination, Plaintiff’s supervisor and Director of
Programs, Carla O’Donnell-Rizzo (“Rizzo”), received a complaint from a staff member
regarding Plaintiff’s behavior. (Filing No. 31-3 at CM/ECF p. 11). Rizzo informed the
executive director of Completely Kids, Penny Parker (“Parker”), of the complaint and Parker
instructed Rizzo to consult with legal counsel. (Filing No. 31-3 at CM/ECF p. 11). The

decision to consult legal counsel at Completely Kids was made by Parker. (Filing No.
29-2 at CM/ECF p. 7).

Parker decided legal counsel should be consulted to ensure

Completely Kids followed all the appropriate steps in case Plaintiff was to be terminated.
(Filing No. 29-2 at CM/ECF pp. 7–8). Parker testified Plaintiff’s medical condition had no
effect on her decision to consult legal counsel. (Filing No. 29-3 at CM/ECF p. 8).

Rizzo continued to investigate the complaint, and first contacted counsel regarding
Plaintiff’s possible termination during the week the termination occurred. (Filing No. 31-3 at
CM/ECF pp. 11–12 & 23). While Rizzo recommended Plaintiff’s termination, the ultimate
decision to terminate Plaintiff was made by Parker. (Filing No. 31-3 at CM/ECF p. 10;
Filing No. 31-4 at CM/ECF pp. 7–8).

On January 13, 2014, Plaintiff filed her Complaint alleging claims of Family and
Medical Leave Act retaliation and Americans with Disabilities Act discrimination and
retaliation. In its Answer, Defendant asserted the good faith affirmative defense, stating
“[a]ll of Completely Kids’ actions with respect to Plaintiff were made in good faith.” (Filing
No. 7 at CM/ECF p. 9).

Plaintiff deposed Rizzo. In her deposition, Rizzo alluded to her consultation with
counsel in response to several questions. She mentioned counsel twice when she was asked
about the content of her meeting with Parker the day before Plaintiff’s termination, saying
she “updated [Parker] on my advice from counsel[,]” (Filing No. 31-3 at CM/ECF p. 11) and
“I told [Parker] . . . what legal counsel told me to do[.]” (Filing No. 31-3 at CM/ECF p. 23).
Rizzo also mentioned counsel at several points when she was questioned regarding the
supervisory notes of Mr. Heaston, Plaintiff’s direct supervisor, and whether counsel was ever
sent the notes.1 (Filing No. 31-3 at CM/ECF pp. 6, 7, 8, 11, & 22–23)
During Defendant’s Rule 30(b)(6) deposition, Plaintiff asked Parker what facts
support Completely Kid’s good faith defense.

Parker responded “I believe we were

accommodating Ms. Garcia. We did everything to support her and what she was trying to do
to recover from her illness. And to me that constitutes good faith.” (Filing No. 31-4 at
CM/ECF p. 11). Plaintiff next asked if “part of the bases . . . with regard to your good-faith
defense is that you consulted counsel with respect to her termination?” Parker responded
1

In accordance with Rule 30(e), Rizzo has subsequently clarified and corrected
some of her answers in connection to this line of questioning. The court is taking both set
of answers under consideration for this motion.
2

“yes.” (Filing No. 31-4 at CM/ECF p. 12).2 Plaintiff’s counsel attempted to advance this
line of questioning by asking specific questions regarding the type of legal advice received
and relied upon by the defendant. (Filing No. 31-4 at CM/ECF p. 12). Defense counsel
objected and after a discussion between counsel, defense counsel ordered Parker not to
answer the questions concerning the advice sought and received from counsel. (Filing No.
31-4 at CM/ECF pp. 12–13). The parties agreed to defer their discussion of such matters.

In November of 2015, the topic was again approached when Plaintiff expressed a
desire to depose Hershiser and to obtain copies of communications between Completely
Kid’s representatives and Koley Jessen P.C., L.L.O. (“Koley Jessen”). Plaintiff forwarded
the proposed subpoena to defense counsel on November 16, 2015, to facilitate discussions
prior to serving it. Within the proposed subpoena, Plaintiff seeks
1. All emails, text messages, letters, notes, memoranda, voicemails and any
other documents that contain or mention or relate to any advice or
recommendations you gave Completely Kids, Penny Parker, Carla Rizzo,
or Bill Heaston regarding Shannan Garcia’s requests for accommodation,
requests for medical leave/FMLA leave, request to attend a conference in
California in April of 2012 despite her medical condition; complaints of
disability discrimination . . . and/or Shannan Garcia’s performance,
discipline or termination or whether Completely Kids should counsel,
discipline or terminate Shannan Garcia. Said request is limited to dates on
and/or prior to Ms. Garcia’s termination on October 5, 2012. and
2. All emails, text messages, letters, notes, memoranda voice mails from
representatives of Completely Kids, and other documents on which you
based or memorialized your understanding of the basis for Ms. Garcia’s
request for accommodation, requests for medical leave/FMLA leave,
request to attend a conference in California in April of 2012 despite her
medical condition; complaints of disability discrimination . . . and/or Ms.
Garcia’s performance or the basis for discipline/counseling/termination.
Said request is limited to dates on and/or prior to Ms. Garcia’s
termination on October 5, 2012.

2

Parker referenced the consultation with counsel one other time in her deposition.
She was asked “And is Ms. Rizzo the only person that you spoke with in regard to Ms.
Garcia’s termination?” And she answered “We did speak with the attorney.” (Filing No.
31-4 at CM/ECF p. 8).
3

(Filing No. 29-2 at CM/ECF p. 4). The parties thereafter held a discovery conference with
the court on December 15, 2015. The court advised the parties to file formal motions for the
court to consider.

Defendant filed this motion arguing that the information sought is

protected by the attorney-client privilege which has not been waived. Plaintiff argues the
defendant impliedly waived any privilege by asserting reliance on the advice of counsel as a
factual basis for its good faith defense.

ANALYSIS

The court may issue a protective order to prevent or limit discovery where
“‘justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.’” Schoffstall v. Hendersen, 223 F.3d 818, 823
(8th Cir. 2000) (quoting Fed. R. Civ. P. 26(c)). This Court has broad discretion to decide
when a protective order is appropriate and what degree of protection is required. Seattle
Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
The defendant is seeking to protect information that is (or has been) covered by
the attorney-client privilege. The attorney client privilege is the oldest and “perhaps the
most sacred” of all recognized privileges. Upjohn Co. v. United States, 449 U.S. 383,
389 (1981); In re Grand Jury Proceedings, 162 F.3d 554, 556 (9th Cir. 1998) (citations
omitted). The purpose of the privilege is to encourage “full and frank communication
between attorneys and their clients.” Upjohn, 449 U.S. at 389. The privilege may be
waived expressly or waived impliedly. Sedco International, S.A. v. Cory, 683 F.2d 1201,
1206 (8th Cir. 1982). “An implied waiver occurs where the client has placed in issue a
communication which goes to the heart of the claim in controversy.” Union County v.
Piper Jaffray & Co. Inc. 248 F.R.D. 217, 220 (S.D. Iowa 2008). Waiver may also be
implied by “conduct making it unfair for a client to invoke the privilege.” Id.3
3

The parties dispute whether the test outlined in Shelton v. American Motors
Corp., should be the standard applied in this motion. Without discussing the merits of
4

Due to the great significance attached to the attorney-client relationship, courts
must proceed with caution when finding an implied waiver of the attorney-client
privilege; the analysis is fact intensive and must be determined on a case-by-case basis.
See United States v. Desir, 273 F.3d 39 (1st Cir. 2001); see also United States v. Doe, 219
F.3d 175, 183, 185 (2d Cir. 2000). Waiver “should not be applied cavalierly.” Doe, 219
F.3d at 186. In determining whether there has been an implied waiver, two elements
must be examined: (1) implied intention and (2) fairness and consistency. Sedco, 683
F.2d at 1206.

Courts have found implied waiver in certain situations: (1) when a client testifies
concerning portions of the attorney-client communication[;] (2) when a client places the
attorney-client relationship directly at issue[;] and (3) when a client asserts reliance on an
attorney's advice as an element of a claim or defense. Sedco, 683 F.2d at 1206. “The key
to a finding of implied waiver in the third instance is some showing by the party arguing
for a waiver that the opposing party ‘relies’ on the privileged communication as a claim
or defense or as an element of a claim or defense.” Pritchard v. County of Erie, 546 F.3d
222 (2d Cir. 2008); see also United States v. Workman, 138 F.3d 1261, 1263 (8th Cir.
1998). “A waiver is to be predicated when the conduct places the claimant in such a
position, with reference to the evidence, that it would be unfair and inconsistent to permit
the retention of the privilege.” Sedco, 683 F.2d at 1206 (citation omitted).

The plaintiff argues Completely Kids has impliedly waived the attorney-client
privilege because it is relying on an attorney consultation that occurred prior to Plaintiff’s
termination as part of its good faith defense. In summary, the evidence shows the

either argument, the court will first determine whether the attorney-client privilege has
been waived.

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following:

As long-standing counsel for Defendant, defense counsel understood

Defendant’s policies and severance packages applicable to both voluntary and
involuntary employee terminations. During the week when Plaintiff’s termination was
under consideration, Rizzo contacted counsel and sent documents or portions of
documents to counsel prior to Plaintiff’s termination. Rizzo then advised Parker of the
“advice from counsel” and “what counsel told [her] to do.” (Filing No. 31-3 at CM/ECF
p. 11, 23). As explained by Parker, Defendant contacted counsel “to make sure that we

have followed the appropriate steps in regard to termination.”

(Filing No. 29-3 at

CM/ECF p. 7). Parker did not testify that she relied on counsel in deciding whether to
terminate Plaintiff. And when Parker was asked if Plaintiff’s medical condition had any
bearing on her decision she answered, “No, it did not. It did not.” (Filing No. 29-3 at
CM/ECF p. 8).

As to the good faith defense, Parker, as the 30(b)(6) representative for Completely
kids, provided a long explanation for the basis of defendant’s good faith defense,
mentioning consultation with counsel in response to only one leading question. Filing
No. 31-4 at CM/ECF p. 12).

There is nothing of record stating Defendant relied on counsel in deciding whether
to terminate, discriminate, or retaliate against Plaintiff. At most, Defendant testified that
it relied on defense counsel regarding the necessary procedural steps for termination
under Defendant’s employee policies and plans. Plaintiff is not pursuing an action for
breach of company policies.

As such, the record fails to show Defendant asserted

reliance on an attorney's advice regarding any “element of a claim or defense” at issue.
Under the facts presented, and as to the claims alleged in this case, Defendant is not
relying on the advice of counsel such that it would be unfair and inconsistent to permit
Defendant to retain the privilege.

In accordance with the high protection afforded

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attorney-client communications, and the caution to be exercised in finding any implied
waiver,
IT IS ORDERED that Defendant’s Motion for Protective Order, (Filing No. 27), is
granted.

Dated this 15th day of January, 2016
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.

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