Henig v. Quinn Emanuel Urquhart & Sullivan, LLP et al

Filing 142

OPINION AND ORDER. Because Plaintiff was engaged in the practice of law, he was not entitled to receive overtime pay pursuant to the FLSA and NYLL. Defendants' motions for summary judgment are therefore granted and all of Plaintiff's claims are dismissed. The Clerk of Court is respectfully directed to close the docket entries at numbers 119 and 120 and to terminate this action. re: #119 MOTION for Summary Judgment filed by Quinn Emanuel Urquhart & Sullivan, LLP, #120 MOTION for Summary Judgment by Document Technologies, LLC filed by Providus New York, LLC. (Signed by Judge Ronnie Abrams on 12/30/2015) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRO NI CALLY FILED
DOC#:
DATE FILED: 12/30/2015

WILLIAM HENIG, on behalf of himself and
all others similarly situated,
Plaintiff,
No. 13-CV-1432 (RA)
V.

OPINION & ORDER
QUINN EMANUEL URQUHART &
SULLIVAN, LLP and PROVIDUS NEW
YORK, LLC,
Defendants.

RONNIE ABRAMS, United States District Judge:
The history of law, Oliver Wendell Holmes observed, "is the history of the moral
development of the race." But many practicing lawyers-especially junior attorneys at large law
firms-know that their jobs too often have less to do with the development of the human race or
the law than with tasks that are necessarily repetitive in nature, modest in intellectual scope, and
banal in character. Particularly in a litigation in which a good deal of money is at stake, attorneys
generally must review thousands if not millions of documents and analyze them for relevance and
privilege using their legal judgment.

Many of those documents must then be reviewed and

analyzed again (and often again) by others higher on the case team's chain of command. Not all
of it is law at its grandest but all of it is the practice oflaw. Mr. Henig was engaged in that practice.
For approximately two months in 2012, Plaintiff, a licensed attorney, reviewed documents
as a "temporary contract attorney" for Defendant Quinn Emanuel Urquhart & Sullivan, LLP. His
job was rote. It entailed sitting in front of a computer and applying a series of "tags" to each
document that indicated primarily whether the document was "responsive" to document requests

in an underlying litigation involving one of Quinn Emanuel's clients and if so, whether it was
"privileged" and therefore protected from production.

Plaintiff had no job duties other than

reviewing documents, and he reviewed almost 13 ,000 documents over the brief course of his
employment. As agreed, he was compensated at an hourly rate for his work.
Plaintiff has since brought this putative class and collective action alleging that he should
have received overtime pursuant to the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201,

et seq., and New York Labor Law ("NYLL").

Those statutes, however, exclude from their

requirements overtime pay to licensed attorneys engaged in the practice of law. See, e.g., 29 C.F.R.
§ 541.304(a)(l).

Relying on that exclusion, Defendants moved for summary judgment.

In

opposing the motions, Plaintiff argues that the exemption does not apply because he was not
required to exercise legal judgment in connection with the document review and thus was not
engaged in the practice of law. The Court disagrees. Accordingly, Defendants' motions are
granted and the case is dismissed.

BACKGROUND 1
I.

Relevant Facts
A.

The Parties

Plaintiff is an attorney licensed to practice law in New York. QE's 56.1
Emanuel is a law firm that specializes in business litigation. 2d Am. Compl.
Emanuel's

Ans.~

~

4. Quinn

("SAC")~

3; Quinn

3. Providus is a limited liability company that provides law firms with attorneys

and paralegals on contract and direct-hire bases. SAC

~

6; Providus' Ans.

~

6. After signing an

employment agreement with Providus, Plaintiff worked on a document review project (the

1
Unless otherwise noted, the facts are undisputed and derive from the following: Defendant Quinn Emanuel's
Supplemented Rule 56.1 Statement of Undisputed Facts in Support of Its Motion for Summary Judgment ("QE's
56.1 "), Plaintiff's Counter-Statement of Material Facts Pursuant to Local Civil Rule 56.1 ("Pl. 's 56.1 "), and the
evidence submitted by the parties in connection with Defendants' motions.

2

"Document Review Project") for Quinn Emanuel and its client (the "Client") from August 16,
2012 through October 16, 2012. QE's 56.1iii!1, 22, 29 & 32; Supp. Kitchens Deel. Exs. J, P. 2

B.

Plaintiff's Hiring

During the summer of 2012, Quinn Emanuel contacted Providus to engage attorneys to
perform the first level review ("First Level Review") for the Document Review Project. QE's 56.1

iJ

1; Supp. Kitchens Deel. Ex. A at 13-14. To be employed on the First Level Review team, a

prospective candidate had to be admitted to and a member in good standing of a state bar and pass
a background and conflicts check. QE's 56.1 iii! 2-3.
On August 10, 2012, an employee at Providus sent an e-mail about the Document Review
Project to potential First Level Review team attorneys, including Plaintiff.

Id.

iJ

5.

The

"parameters" of the Project listed in the e-mail included: "Duration: 2 months, could be more could
be less"; "Rate: $35 flat"; "Hours: 57 min to 60 max/week, may ramp up higher at times"; "OT:
flat rate over 40hrs/week [sic]"; and "Bar: Active any state." Supp. Kitchens Deel. Ex. D. On
August 12, 2012, Plaintiff replied to the e-mail and confirmed that he was "admitted to NY bar
and in good standing." Id.; see also QE's 56.1

iJ

8. Plaintiff also sent the Providus employee a

copy of his resume and completed a conflict check form, both of which were forwarded to Quinn
Emanuel. QE's 56.1 ii 16.
On August 14, 2012, Plaintiff interviewed with a Quinn Emanuel contract attorney. Id.

iJ

19. The interview lasted a few minutes. Schulman Deel. Ex. 1 ("Henig Tr.") at 58-59. The

contract attorney recommended that Plaintiff be hired, and on August 15, 2012, Plaintiff signed a
contract with Providus. QE's 56.1iii!21-22; Supp. Kitchens Deel. Ex. J. The contract purports

2

Quinn Emanuel's Rule 56.1 Statement asserts that Plaintiff began work on "August 16, 20 l O," and Plaintiff
agreed with this claim in his Counter-Statement. QE's 56. l ~ 29; Pl.'s 56. l ~ 29. That appears to be a typographical
error, however, as Plaintiffs work on the Document Review Project occurred in 2012, not 20 I 0. See, e.g., Supp.
Kitchens Deel. Exs. J, K & P.

3

to "set forth the terms and conditions under which [Plaintiff] will perform legal services for ...
Quinn Emanuel." Supp. Kitchens Deel. Ex. J. Plaintiff claims he "had no legal experience relating
to" the subject matter of the litigation necessitating the Document Review Project, Henig Deel.
~

29, but acknowledges that, having gone to law school, he knew about and had received training

regarding the attorney-client privilege, QE's

56.1~14;

Supp. Kitchens Deel. Ex. C (also "Henig

Tr.") at 171.
C.

The Document Review Project

The Document Review Project involved reviewing and categorizing documents that had
previously been identified using search terms. QE's 56.1

~

44. Every document produced in the

underlying litigation was produced only after being reviewed by attorneys, not merely because it
included a search term. Id.

~~

45-46. According to Quinn Emanuel, First Level Review team

attorneys were expected to review approximately 40 documents per hour. Id.

~

128. According

to Plaintiff: First Level Review team attorneys were expected to review 50 to 60 documents per
hour. Henig Tr. 141-42.
Plaintiff began working on the Document Review Project on August 16, 2012. QE's 56.1
~

29. On his first day, Quinn Emanuel provided Plaintiff with an orientation that lasted a few hours

and included training on "Relativity," the electronic database that was used on the Document
Review Project; a presentation on administrative issues such as billing procedures; and a
substantive training regarding the scope and goals of the Document Review Project. Id.

~~

33-36.

Plaintiff contends that the substantive training was too brief to allow him to understand the nature
of the claims at issue in the underlying litigation involving the Client. Pl.'s

56.1~33.

The orientation included a 31-page PowerPoint presentation describing the Document
Review Project (the "Presentation"). QE's 56.1

4

~

37; Supp. Kitchens Deel. Ex. Q. The Quinn

Emanuel associate leading the orientation reviewed and provided a verbal explanation for each
slide in the Presentation. QE's 56.1

~

38. The Presentation includes a cover slide, 18 slides

describing the nature of the underlying litigation, staffing, and claims at issue, and 12 slides
specifically describing the Document Review Project. See Supp. Kitchens Deel. Ex. Q. Of the
slides that address the Document Review Project, some include tables ofrelevant people and other
information relevant to the Document Review Project and others identify certain "tags" and "subtags" the First Level Review team members were to use to categorize documents. See id.; see also
QE's

56.1~~37,

40. Plaintiff testified that this set of slides was "almost like [his] bible" during

the Document Review Project and that he "would refer to [it] exhaustively in tagging" documents.
Henig Tr. 81. At various times during the Document Review Project, Quinn Emanuel provided
First Level Review team members, including Plaintiff, with updated materials and at least one
additional training session. QE's 56.1

~~

55-56; Henig Deel.

~

19.

The "tags" and "sub-tags" identify four principal ways in which the First Level Review
team members could categorize the documents they reviewed:

(1) "responsive" or

"nonresponsive"; (2) privileged or not privileged; (3) "key" or "interesting"; and (4) not
confidential. QE's 56.1
1.

~~

47, 58, 79 & 85-86; Supp. Kitchens Deel. Ex. Q at 21.

Responsiveness

The Presentation instructs First Level Review team members to tag as responsive
"documents responsive to [the operative] requests for production, limited by [the Client's]
objections." Supp. Kitchens Deel. Ex. Q at 21. The Presentation similarly directs First Level
Review team members to tag as nonresponsive documents that are either "not responsive to [the
operative] requests for production" or "relate to a request for which [the Client] has declined to
produce documents." Id. The presentation also refers to a "[c]hart of [the Client's] [p]ositions

5

with respect to [d]ocument [r]equests." Id. Quinn Emanuel provided First Level Review team
members with the chart referenced in the Presentation and copies of the responses and objections
to the operative discovery requests. QE's 56.1

if 50; Supp. Kitchens Deel.

Exs. V, W.

Plaintiff acknowledges he received these materials, but contends they do not accurately
encompass the instructions he was given when reviewing documents for responsiveness. Pl.'s
56.1

iii!

47-53. 3

Instead, Plaintiff contends that the Quinn Emanuel associate leading the

orientation "told us to review documents to see whether they contained any of the terms or names
included in the various lists and charts Quinn Emanuel gave us." Henig Deel.

if 11.

To the extent

that instruction conflicted with those in the Presentation, the Quinn Emanuel associate who led the
orientation testified that "[i]f there were any inconsistencies between what was written ... and
what [he J said ... , [he] would have expected someone to have followed [his] guidance during the
presentation." Schulman Deel. Ex. 2 at 75.
According to Plaintiff, a document's responsiveness depended almost entirely on whether
any of the terms or names contained in the lists and charts Quinn Emanuel provided appeared in
the document. Plaintiff contends that "[i]f one of those terms or names was present in a document,
then Quinn Emanuel almost certainly deemed the document responsive," whereas "[i]f a document
did not contain one of those terms or names, then Quinn Emanuel almost certainly deemed the
document non-responsive." Henig Deel.

iii!

12-13. Plaintiff claims that after asking a Quinn

Emanuel attorney how to code a document, he was told "that [he] should mark responsive
documents that contained the various terms and names included in the charts Quinn Emanuel gave

if 20.

us." Id.

Plaintiff further claims that "[n]o one from Quinn Emanuel ever told [him] that [he]

should refer to actual document requests and objections thereto" or the chart of the Client's

3

Plaintiff also asserts that he was not given sufficient time to review the written materials provided to him.
~ 24.

See Henig Deel.

6

positions with respect to the requests and objections referenced in the Presentation. Id. ,-i 21. In
light of these claims, Plaintiff asserts that he "tagged documents as responsive or nonresponsive
based solely on the criteria that Quinn Emanuel provided [him], rather than on [his] own
interpretation of what documents were responsive or not responsive to the discovery requests." Id.
,-i 23.

2.

Privilege

The Presentation instructs First Level Review team members to tag as privileged
"documents that are responsive/relevant, but that are subject to either the attorney-client privilege
or work product privilege."

Supp. Kitchens Deel. Ex. Q at 21 (emphasis in original).

The

Presentation also references separate sub-tags for the attorney-client privilege, work product, and
the deliberative process privilege. Id. The Presentation, moreover, instructs First Level Review
Team members to "review for privilege on all documents [they] consider responsive" and "err in
favor of designating a document which has any possibility of being privileged as 'privileged.'" Id.
at 26 (emphasis in original). One line in the Presentation explicitly states that "[p ]rivilege can be
tricky and there are a lot of gray areas." Id.
Plaintiff admits that one of his jobs was to determine whether or not responsive documents
were privileged. QE's 56.1,-i61. He disputes, however, that he was tasked with making privilege
determinations independently.

Plaintiff claims the Quinn Emanuel associate leading the

orientation "told us that we should mark as attorney-client privileged any document that went from
an attorney to a client or vice versa." Henig Deel. ,-i 15. According to Plaintiff, the associate "also
told us that if an author or recipient of a document was neither an attorney nor a client, we should
not mark it as attorney-client privileged." Id. ,-i 17. As for work product, Plaintiff contends he was

7

told "that if a document was already labeled as 'work product' ... we should mark it as work
product privileged."

Id.~

18.

On September 4, 2012, a Quinn Emanuel associate sent an e-mail to the First Level Review
team modifying the instructions in the Presentation. Supp. Kitchens Deel. Ex. X. The e-mail states
that "[ u]p until now the instruction had been that if there was a whiff of priv[ilege] you should
mark it privileged," but counsels that going forward "if you see and know that priv[ilege] has been
broken you may now refrain from tagging it priv[ileged]." Id. In a follow-up e-mail, the associate
made clear that if First Level Review team members "aren't comfortable making this type of
determination (or if [they] feel it requires nuance) then tag the doc[ument] privilege[d]." Id.
3.

"Key" and "Interesting" Documents

The Presentation defines "key" documents as those "that directly relate to whether [the]
claims [at issue] are actionable" and "interesting" documents as those "that are interesting or
important to the case and you feel should be flagged for the group, such as documents that would
be helpful in depositions or briefs." Supp. Kitchens Deel. Ex. Q at 21. The Presentation suggests
that only 1% of documents will be tagged as "key" and only 10% of documents will be tagged as
"interesting." Id. Plaintiff denies that he was instructed to use the "key" and "interesting" tags.
Pl. 's 56.1

~~

79-84.
4.

Confidentiality

Documents in the Document Review Project were presumptively tagged as "confidential,"
and First Level Review team members were tasked with determining whether to remove that tag.
QE's 56.1

~

86. The Presentation instructs that documents are "[n]ot [c]onfidential" if they are

"[p ]ublic documents, new[ s] reports, SEC filings, etc." Supp. Kitchens Deel. Ex. Q at 21. Plaintiff

8

acknowledges that his work on the First Level Review team included determining whether
documents should be tagged as not confidential. QE's 56.1 ,-i,-i 90-91.

D.

Subsequent Review

Whether documents received further review depended on the tags applied by First Level
Review team members. Documents tagged as "nonresponsive" were withheld from production
and received no further review, with the exception of a random sample of nonresponsive
documents that were reviewed for quality control purposes. QE's 56.1,-i127. Documents tagged
as "responsive" and privileged were sent to a separate "Privilege Review" team. Id. ,-i 126. Finally,
documents tagged as "responsive" and not privileged were sent to a "Second Level Review" team.

Id. ,-r 125.
E.

Plaintiff's Work on the Document Review Project

Over the course of his time on the Document Review Project, Plaintiff worked 297 hours.
QE's 56.1,-i105. He reviewed 12,938 documents, tagging 10,103 as responsive. Id. ,-i 106. The
parties agree that of the 2,835 documents Plaintiff tagged as nonresponsive, "most" were not
reviewed by anyone else. Id. ,-i 109. 4
Plaintiff tagged 1,845 documents as privileged. Id. ,-i 106. He tagged some of these
documents to be withheld entirely and others to be redacted. Id. ,-i 107. Among the substantive
tags Plaintiff utilized were the attorney-client privilege tag, the work product doctrine tag, and the
deliberative process privilege tag. Id. At his deposition, when shown a document he marked as
subject to the deliberative process privilege, Plaintiff testified that he "took a wing" based on the
entity that created the document. Henig Tr. 189. A few times, Plaintiff could not determine

4 At oral argument, counsel for Quinn Emanuel explained that "[t]here is no way to tell from the record before
the Court" exactly how many documents that Plaintiff tagged as nonresponsive were in fact subsequently reviewed to
check for quality control. Oral Arg. Tr. 14.

9

whether a responsive document was protected by a privilege. QE's 56.1~113. Plaintiff testified
that this occurred when it was not clear whether a document "was addressed from or to an
attorney." Henig Tr. 102-03; see Pl.'s 56.1~113. Quinn Emanuel rightly notes, however, that
on three separate occasions Plaintiff included comments questioning whether particular documents
were privileged and that those comments were not based on an attorney's name appearing in the
documents. QE's

56.1~~114-15.

Plaintiff also tagged one document as "key." Id. ~ 111. He testified that he tagged the
document as "key" because it "didn't seem like something that should be buried" and appeared to
be sent by a "head honcho who was pissed" and therefore "required further review." Id.; Pl. 's 56.1
~

111; Henig Tr. 191-194. He did so, he testified, even though he did not understand the document

to relate directly to the claims in the underlying litigation. Pl.'s 56.1
II.

~

111.

Procedural History
Plaintiff initiated this action on March 4, 2013, bringing claims under the FLSA and NYLL.

Dkt. 1. On April 26, 2013, Defendants moved to dismiss Plaintiff's Complaint. Dkt. 20, 23. On
December 11, 2013, the Court denied Defendants' motions and ordered that the parties engage in
discovery limited to the issue of whether Plaintiff was engaged in the practice of law. Dkt. 44.
On May 7, 2014, Plaintiff filed an Amended Complaint, and on July 3, 2014, he filed the
Second Amended Complaint. Dkt. 74, 93.
Following discovery, on October 20, 2014, Quinn Emanuel moved for summary judgment.
Dkt. 110. On October 23, 2014, Providusjoined Quinn Emanuel's motion. Dkt. 112. On October
29, 2014, the Court held Defendants' motions in abeyance pending a decision by the Court of
Appeals for the Second Circuit in Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, No. 143845, another case addressing whether contract attorneys employed to work on document review

10

projects are entitled to overtime under the FLSA. Dkt. 114. The Second Circuit issued its decision
on July 23, 2015, and on the same day, the Court invited the parties to incorporate Lola into their
arguments. Dkt. 116.
On August 14, 2015, Quinn Emanuel renewed its motion for summary judgment, and
Providus again joined Quinn Emanuel's motion. Dkt. 119-20. Plaintiff opposed Defendants'
motions on September 21, 2015, and Quinn Emanuel replied on October 8, 2015. Dkt. 121, 123.
On October 29, 2015, the Court heard oral argument. See Dkt. 126.
ST AND ARD OF REVIEW

A district court "shall grant summary judgment ifthe movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). "A fact is material if it 'might affect the outcome of the suit under the governing
law,' and a dispute is genuine if 'the evidence is such that a reasonable jury could return a verdict
for the nonmoving party."' Baldwin v. EM! Feist Catalog, Inc., 805 F.3d 18, 25 (2d Cir. 2015)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "In ruling on a motion for
summary judgment, 'the district court must view the evidence in the light most favorable to the
party opposing summary judgment and must draw all permissible inferences from the submitted
affidavits, exhibits, interrogatory answers, and depositions in favor of that party."' Harris v.
Provident Life & Accident Ins. Co., 310 F.3d 73, 78 (2d Cir. 2002) (quoting Gummo v. Vilt. of
Depew, N. Y, 75 F.3d 98, 107 (2d Cir. 1996)). A court, however, "cannot credit a plaintiffs merely

speculative or conclusory assertions" of fact. DiStiso v. Cook, 691 F .3d 226, 230 (2d Cir. 2012).
DISCUSSION

Both the FLSA and NYLL exempt from their overtime requirements any employee
employed "in a bona fide ... professional capacity." 29 U.S.C. § 213(a)(l); N.Y. Comp. Codes

11

R. & Regs. tit. 12, § 142-2.14(c)(4)(iii)(a). Under Department of Labor regulations enacted
pursuant to the FLSA, "professional" employees include "[a]ny employee who is the holder of a
valid license or certificate permitting the practice oflaw ... and is actually engaged in the practice
thereof." 29 C.F.R. § 541.304(a)(l). Although NYLL does not include a similarly explicit
exemption for licensed attorneys engaged in the practice of law, it "applies the same exemptions
as the FLSA." Reiseckv. Universal Commc'ns o..f Miami, Inc., 591F.3d101, 105 (2d Cir. 2010).
Courts therefore frequently analyze overtime claims brought under the FLSA and NYLL jointly.
See, e.g., Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 556 n.1 (2d Cir. 2012) (declining

to "engage in a separate analysis of plaintiffs' NYLL claims, which fail for the same reasons as
their FLSA claims"). Because the parties here agree that the same standard applies to Plaintiff's
FLSA and NYLL claims, the Court will analyze them together. See Oral Arg. Tr. 7, 15-16.
I.

Defining the Practice of Law

There is no dispute that Plaintiff "is the holder of a valid license or certificate permitting
the practice oflaw." 29 C.F.R. § 541.304(a)(l). Plaintiff acknowledges he is an attorney licensed
to practice in New York. See Pl.'s 56.1if4; Pl.'s Opp. Mem. 9 ("[I]t is undisputed that Plaintiff is
a licensed attorney[.]").
Whether Plaintiff is exempt from the overtime requirements of the FLSA and NYLL thus
depends on whether he was "actually engaged in the practice [of law]" when he worked on the
Document Review Project. 29 C.F.R. § 54 l.304(a)(l ). The Second Circuit recently clarified that
"the definition of 'practice of law' is primarily a matter of state concern." Lola v. Skadden, Arps,
Slate, Meagher & Flom LLP, 620 F. App'x 37, 41 (2d Cir. 2015). In Lola, the Second Circuit

"f[ound] no error with the district court's conclusion that we should look to state law in defining
the 'practice of law'" for the purposes of applying the FLSA. Id. at 42.

12

Because Plaintiff is an attorney licensed by the State of New York and the Document
Review Project occurred in New York, the parties agree-as does the Court-that New York law
applies to Plaintiff's claims. See Defs.' Mem. 13; Pl. 's Opp. Mem. 10. The parties further agree
that, under New York law, the critical inquiry before this Court is whether Plaintiff's job duties
included exercising legal judgment. Oral Arg. Tr. 7 (Quinn Emanuel arguing that Plaintiff is
"relying solely" on his claim that he exercised no legal judgment), 15 (Plaintiff characterizing the
exercise of legal judgment as the "pivotal question here"). 5 Indeed, in Lola, the Second Circuit
noted that "many ... states ... consider the exercise of some legal judgment an essential element
of the practice of law." 620 F. App'x at 44-45 (collecting cases, including Matter of Rowe, 80
N. Y.2d 336 (1992)). Plaintiff therefore concedes that if his work on the Document Review Project
required him to exercise legal judgment, he was engaged in the practice of law and Defendants'
motion should be granted. See Oral Arg. Tr. 15.
II.

Whether Plaintiff Was Engaged in the Practice of Law

Defendants argue that Plaintiff exercised legal judgment as a member of the First Level
Review team because his duties "included identifying whether documents were responsive,
privileged, and/or confidential." Defs.' Mem. 16. Relying primarily on the language in the
Presentation used during Plaintiff's orientation, Defendants characterize the work performed by
First Level Review team members as encompassing a series of judgments that all required Plaintiff

5
In denying Defendants' motion to dismiss, the Court identified three factors relevant to determining whether
an individual has engaged in the practice of law in New York: (I) "whether the individual at issue renders legal advice
to a particular client," see Matter of Rowe, 80 N.Y.2d 336, 341--42 (1992); (2) "whether [the individual] holds himself
out as an attorney, see A&E Television Networks, LLC v. Pivot Point Entm't, LLC, No. 10-CV-9422, 2011 WL
6156985 (PGG) (JLC), at *1 (S.D.N.Y. Dec. 9, 2011); and (3) whether [the individual's] duties require him to draw
on legal knowledge and judgment," see Sussman v. Grado, 746 N.Y.S.2d 548, 552 (N.Y. Dist. Ct. 2002). Dkt. 45 at
7. The parties here agree that courts interpreting New York law have applied some or all of these three factors. See
Defs.' Mem. 13-14; Pl.'s Opp. Mem. 10. Although Defendants contend that Plaintiff has conceded the first two
factors, while Plaintiff maintains that the first two factors are not relevant here, compare Oral Arg. Tr. 7 with id. at
15, the parties agree that the Court need only analyze the third factor to resolve this dispute.

13

to draw on his legal knowledge. See id. at 16-19. The Presentation indeed uses language that
anticipates the need for legal judgment, particularly with regard to privilege, which the
Presentation acknowledges is "tricky" and includes "a lot of gray areas." Supp. Kitchens Deel.
Ex. Q at 26. If the Presentation were the only evidence in the record regarding Plaintiffs work on
the Document Review Project, there could be little doubt that Plaintiff was called upon to exercise
his legal judgment when reviewing documents.
Plaintiff, however, disputes whether the Presentation accurately describes the duties he was
actually tasked with performing on the Document Review Project. See Pl.'s Opp. Mem. 15.
Plaintiff contends that, despite what the Presentation says, Quinn Emanuel attorneys gave him
verbal instructions that eliminated all legal judgment from his duties on the First Level Review
team. With regard to responsiveness, Plaintiff argues he was "instructed ... to tag documents
responsive or not responsive based on the presence or absence of the terms or names included in
the many lists and charts Quinn Emanuel provided," which required "merely the ability to read."
Id. at 13. With respect to privilege, Plaintiff argues he was "directed ... to mark as attorney-client

privileged any document that went from an attorney to a client or vice versa and did not include a
non-attorney or non-client among its authors or recipients," which required Plaintiff "merely ...
to identify attorneys and clients by referring to the lists and charts Quinn Emanuel provided." Id.
at 14. As to work product, Plaintiff argues he was "told that documents already labeled as 'work
product' were to be tagged as work product," obviating the need for any discretion at all. Id.
Even assuming that Plaintiff did receive verbal instructions that contradicted the
Presentation, however, those instructions did not strip Plaintiff's work on the Document Review
Project of all legal judgment.

The Lola court concluded that attorneys exercise "no legal

judgment" when in the course of reviewing documents, they "provide[] services that a machine

14

could ... provide[]." Id.

At oral argument, however, Plaintiff's counsel acknowledged that

Plaintiff "did not plead that [he] did work a machine could do." Oral Arg. Tr. 16. Plaintiff instead
contends that the "specific protocols" he was instructed to follow "involved a modicum of human
judgment, but no legal judgment" in that the decisions he made when tagging documents did not
"require[] or allow[ him] to draw on his ... knowledge of legal principles." Pl.' s Opp. Mem. 13
& n.4 (emphasis in original).

Plaintiff's tagging history and his other descriptions of his role on the Document Review
Project, however, confirm that his job involved more than the largely mindless task that would
result from following the verbal instructions to the letter. In particular, Plaintiff's use of the
deliberative process and "key" tags on certain documents, as well as his comments on the
potentially privileged nature of other documents, make clear that Plaintiff's work on the Document
Review Project involved the type of professional judgment necessary to be engaged in the practice
of law. For example, Plaintiff testified that he "assumed" that the deliberative process privilege
applied to one document because of the entity that created it, and that his decision required a "little
simple judgment," even though he "took a wing" in making that determination. Henig Tr. 189,
227. He also testified that he tagged a document as "key" because it "didn't seem like something
that should be buried." Id. at 192.

Plaintiff's tagging on these documents, along with his

comments on the potentially privileged nature of others, reveal that he understood the process by
which he was meant to review documents could-and did-require him to exercise legal
judgment. See Oberc v. BP PLC, No. 13-CV-1382 (KMH), 2013 WL 6007211, at *6 (S.D. Tex.
Nov. 13, 2013) ("The mere fact that [document review] may be routine or constrained by
guidelines does not make it any less 'legal."').

15

Plaintiff contends that these "few examples do little to overcome the plausibility of [his]
claim" because they all more or less amounted to guesswork that was not grounded in any legal
knowledge. Pl. 's Opp. Mem. 20-21. To the contrary, these examples instead suggest that during
the two months in which he participated in the Document Review Project, Plaintiff relied in some
way on his legal knowledge and experience, including by concluding that the overwhelming
majority of documents he reviewed did not require these tags. Indeed, the mere fact that Plaintiff
tagged one document as key because it "didn't seem like something that should be buried," but did
not so tag any other document he reviewed, helps establish that throughout his work on the
Document Review Project he exercised the very judgment-legal judgment-he now disavows.
See Henig Tr. 192.
Plaintiffs additional argument regarding the "re-review" by others of many of the
documents he reviewed is also unavailing. See Pl.'s Opp. Mem. 17-18. Plaintiff concedes that
most of the nearly 3,000 documents he concluded were nonresponsive received no further review.
Pl. 's 56.1 ,-i,-i 109, 127. If anything, this feature of the Document Review Project, by which Plaintiff
made what amounted to final decisions regarding whether most of the documents he tagged as
nonresponsive should be produced, further supports the Court's conclusion that he was engaged
in the practice of law.
Plaintiffs other descriptions of his work on the Document Review Project reinforce this
conclusion. According to Plaintiff, Quinn Emanuel did not always consider a document responsive
or nonresponsive depending on whether it included any of the terms or names provided to Plaintiff,
but rather "almost certainly" did so.

Henig Deel. ,-i,-i 12-13.

Plaintiff therefore appears to

acknowledge that the responsiveness of a document did not depend entirely on whether it included
certain terms or names. See Pl.' s 56.1 ,-i 121 (describing how Plaintiff determined whether a

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document was responsive or nonresponsive when he was not sure). Plaintiff also concedes that at
times he could not tell whether or not a particular document was privileged and that on three
occasions, he included comments regarding the potentially privileged nature of documents he
reviewed. Id.

iii! 113-14.

On those occasions, Plaintiff did not base his comments on the existence

of any attorney names in the document. Id.

iJ 115.

The judgment exhibited by Plaintiff in analyzing those particular documents-as well as
those to which Plaintiff assigned the "key" and deliberative process privilege tags-distinguishes
the facts of this case from the allegations that survived a motion to dismiss in Lola. See Pl. 's 56.1

iii!

111-12 (describing Plaintiffs rationale for tagging one document as "key" and another as

subject to the deliberative process privilege). Plaintiff argues that he is in the same position as the
plaintiff in Lola because he "performed document review under such tight constraints that he
exercised no legal judgment whatsoever." Lola, 620 F. App'x at 45; see Oral Arg. Tr. 16, 20. The
record here establishes otherwise.
In sum, even viewing Plaintiffs factual assertions about the instructions he received on the
Document Review Project in the light most favorable to him, the Court concludes that he exercised
legal judgment while working as part of a team engaged in the process of "rendering ... legal
advice and opinions directed to [a] particular client[]." Matter of Rowe, 80 N.Y.2d at 341-42.
Plaintiff was therefore engaged in the practice of law under New York law. See id. Because
Plaintiff is also "the holder of a valid license or certificate permitting the practice of law," 29
C.F.R. § 541.301 (a)(l), he is a professional employee exempt from the overtime provisions of both
the FLSA and NYLL. See 29 U.S.C. § 213(a)(l); N.Y. Comp. Codes R. & Regs. tit. 12, § 1422.14( c)(4)(iii)(a). Accordingly, his claims under these statutes must be dismissed.

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CONCLUSION
Because Plaintiff was engaged in the practice oflaw, he was not entitled to receive overtime
pay pursuant to the FLSA and NYLL. Defendants' motions for summary judgment are therefore
granted and all of Plaintiffs claims are dismissed. The Clerk of Court is respectfully directed to
close the docket entries at numbers 119 and 120 and to terminate this action.
SO ORDERED.
Dated:

December 30, 2015
New York, New York

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