Foster et al v. City of New York, New York

Filing 84

MEMORANDUM AND ORDER granting in part and denying in part #57 MOTION to Compel Production of Documents and Testimony Regarding Defendant's Efforts to Comply with the Fair Labor Standards Act. The plaintiffs' motions to compel (Docket no. 57 in Foster v. City of New York, 14 Civ. 4142; Docket no. 56 in De la Cruz v. City of New York, No. 14 Civ. 9220) are granted in part and denied in part as discussed above. Within fourteen days of the date of this order, the defendant shall (1) produce the documents over which it has waived privilege, (2) serve a supplemented privilege log, and (3) designate a Rule 30(b)(6) witness. (As further set forth in this Order.) (Signed by Magistrate Judge James C. Francis on 2/5/2016) Copies Sent By Chambers. (adc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KESHIA FOSTER, et al.,

11 Civ. 4142

Plaintiffs,

(PGG)

(JCF)

fl-usDS SDNY

I

DOCUMENT

- against -

I.

CITY OF NEW YORK,

;LEC~~RONICALLY

-·11I

. .
ViLCn 11

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1

.

'.'.'·'<:~ls/it,,.·

Defendant.
ELll\NA DE: LA CRUZ, et al.,

14 Civ.

9220

(PGG) (JCF)

Plaintiffs,
MEMORANDUM
AND ORDER

- against CITY OF NEW YORK,
Defendant.
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
This

discovery

dispute

concerns

the

scope

of

the

implied

waiver of attorney-client privilege and work product immunity that
arises when a litigant defends against a claim by relying on the
advice

of

iLs

counsel.

The

plaintiffs have

filed

a motion to

compel production of documents and testimony contending that the
waiver
between

expansive, exposing to discovery not only communications

is

counsel

for

the

defendant

and

defendant's

employees

concerning the relevant topic, but also internal communications and

other information created by counsel and not communicated to the
defendant.

The defendant suggests a more tailored waiver.

In the

presenL circumstances of this case, information not communicated to
the

client

need_

:-iot

be

disclosed.

granted in part and denied in part.
1

crhe

plaintiffs'

motion

is

Background
In these cases, the plaintiffs in Foster v. City of New York,
14 Civ. 4142, who are employees of the New York City Administration
for Children’s Services (“ACS”), and the plaintiffs in De la Cruz
v. City of New York, 14 Civ. 9220, who are employees of the New
York City Human Resources Administration (“HRA”), claim that the
City of New York (the “City”) willfully violated the Fair Labor
Standards Act (the “FLSA”), 29 U.S.C. § 201 et seq., by failing to
pay overtime compensation.1

(Second Amended Complaint, ¶¶ 37, 43,

1

Foster originally included plaintiffs from both agencies.
However, the defendant represented that relevant timekeeping
procedures may have differed depending on the agency employing a
particular plaintiff.
(Letter of Gregory K. McGillivray dated
Sept. 10, 2014, at 2). Therefore, pursuant to an agreement among
the parties, the claims of those plaintiffs employed by HRA were
severed from the Foster case and assigned a separate docket number,
thus becoming the De la Cruz case. (Order dated Nov. 11, 2014).
The motion I address here has been filed in both actions.
(Notice of Motion in Support of Plaintiffs’ Motion to Compel
Production of Documents and Testimony Regarding Defendant’s Efforts
to Comply with the Fair Labor Standards Act (FLSA) (Docket no. 57
in Foster v. City of New York); Notice of Motion in Support of
Plaintiffs’ Motion to Compel Production of Documents and Testimony
Regarding Defendant’s Efforts to Comply with the Fair Labor
Standards Act (FLSA) (Docket no. 56 in De la Cruz v. City of New
York)).
Because the submissions in the two cases tend to be
substantively identical in material ways, I will generally cite the
submissions in Foster only.
The defendant has filed in both cases the same opposition
brief, headed with the De la Cruz caption and referring
exclusively to the De la Cruz plaintiffs and the agency (HRA) that
employs them (although there is a single inexplicable reference to
ACS (Defendant’s Opposition to Plaintiffs’ Motion to Compel
Production of Documents and Testimony (“Def. Memo.”) at 4)).
However, the plaintiffs indicate that they received a courtesy copy
of an opposition prepared for the Foster case. (Plaintiffs’ Reply
in Support of Plaintiffs’ Motion to Compel Production of Documents
and Testimony Related to Defendant’s Defense to Liquidated Damages
(“Reply”) at 1 n.1). I will assume that the City intended to file
an appropriate opposition in Foster and that it would be
2

49, 55; Letter of Gregory K. McGillivary dated Aug. 21, 2014, at
1).2

The statute provides for an award of liquidated damages in an

amount equal to the amount of unpaid overtime compensation unless
the defendant shows that it acted in good faith.

29 U.S.C. §§

216(b), 260; see also Eschmann v. White Plains Crane Service, Inc.,
No. 11 CV 5881, 2014 WL 1224247, at *8 (E.D.N.Y. March 24, 2014).
That is, to avoid the award of liquidated damages, a defendant who
has violated the overtime provisions of the FLSA must prove that it
“acted in subjective ‘good faith’ and had objectively ‘reasonable
grounds’ for believing that the acts or omissions giving rise to
the failure did not violate the [statute].” Herman v. RSR Security
Services Ltd., 172 F.3d 132, 142 (2d Cir. 1999).

To meet the

subjective prong, “an employer must show that it took ‘active steps
to ascertain the dictates of the FLSA and then act to comply with
them.’”

Barfield v. New York City Health and Hospitals Corp., 537

F.3d 132, 150 (2d Cir. 2008) (quoting RSR Security Services, 172
F.3d at 142).
The defendant asserts it implemented policies and procedures
“to ensure compliance with the FLSA after consultation with counsel
for the City of New York.”

(Def. Memo. at 2; Answer to Second

substantively similar in all material ways to its De la Cruz
opposition.
I therefore cite only the De la Cruz opposition,
making certain alterations in quoted material to reflect that its
arguments apply to both sets of plaintiffs.
2

The cited complaint is from the Foster case. Oddly, the
identical complaint, bearing the Foster caption and indicating that
the plaintiffs are ACS employees, appears on the De la Cruz docket
as the operative complaint. (Second Amended Complaint (Docket no.
27 in De la Cruz v. City of New York).
This appears to be a
mistake that the plaintiffs should correct.
3

Amended

Complaint,

¶

69).

The

plaintiffs

contend

that

the

defendant, as a consequence of this defense, has broadly waived
attorney-client privilege and work product immunity, and they ask
the court to compel the defendant to produce (1) all relevant
communications exchanged with the City’s attorneys concerning the
legality under the FLSA of the defendant’s policies and its efforts
to ensure compliance with the statute, including communications (a)
between the New York City Law Department (the “Law Department”) and
the City’s outside counsel, (b) between the Law Department and City
employees outside the Law Department, and (c) between outside
counsel and other City employees; (2) a privilege log describing
communications the City believes are privileged; and (3) a witness
to testify pursuant to Rule 30(b)(6) of the Federal Rules of Civil
Procedure as to the City’s efforts to comply with the FLSA. (Reply
at 1).
Discussion
A.

Legal Standards

The attorney-client privilege protects from disclosure “(1) a
communication between client and counsel that (2) was intended to
be and was in fact kept confidential, and (3) was made for the
purpose of obtaining or providing legal advice.”

In re County of

Erie, 473 F.3d 413, 419 (2d Cir. 2007); accord United States v.
Ghavami, 882 F. Supp. 2d 532, 536 (S.D.N.Y. 2012).

The privilege

is intended “to encourage full and frank communication between
attorneys and their clients and thereby promote broader public
interests in the observance of law and administration of justice.”
4

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

There does

not appear to be a dispute here that the privilege may apply to
communications

between

attorneys

in

the

agencies’

legal

departments, the City’s legal department, or the City’s outside
counsel

and

agency

or

City

employees

outside

of

those

legal

departments.
The work product doctrine “shields from disclosure materials
prepared ‘in anticipation of litigation’ by a party, or the party’s
representative, absent a showing of substantial need.”

United

States v. Adlman, 68 F.3d 1495, 1501 (2d Cir. 1995) (quoting Fed R.
Civ. P. 26(b)(3)).

It is designed to protect “mental impressions,

conclusions, opinions or legal theories . . . concerning the
litigation.” United States v. Adlman, 134 F.3d 1194, 1197 (2d Cir.
1998) (quoting Fed. R. Civ. P. 26(b)(3)(B)).

The burden of

establishing any right to protection is on the party asserting it,
In re Grand Jury Subpoenas Dated March 19, 2002 & August 2, 2002,
318 F.3d 379, 384 (2d Cir. 2003), and is “not ‘discharged by mere
conclusory or ipse dixit assertions,’” In re Grand Jury Subpoena
dated January 4, 1984, 750 F.2d 223, 224-25 (2d Cir. 1984) (quoting
In re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965)).

The protection

claimed must be narrowly construed and its application must be
consistent with the purposes underlying the asserted immunity.

In

re Grand Jury Subpoenas, 318 F.3d at 384.
“Under Rule 26(b)(3) of the Federal Rules of Civil Procedure,
‘[t]hree conditions must be fulfilled in order for work product
protection to apply.

The material must (1) be a document or a
5

tangible

thing,

(2)

that

was

prepared

in

anticipation

of

litigation, and (3) was prepared by or for a party, or by his
representative.’”

DeAngelis v. Corzine, Nos. 11 Civ. 7866, 12 MD

2338, 2015 WL 585628, at *4 (S.D.N.Y. Feb. 9, 2015) (alteration in
original)

(quoting

In

re

Veeco

Instruments,

Inc.

Securities

Litigation, No. 05 MD 1695, 2007 WL 724555, at *4 (S.D.N.Y. March
9, 2007)).
the

rule

Work product immunity, however, stretches further than
indicates,

to

include

“intangible

work

product:

an

attorney’s analysis made in anticipation of litigation, but which
has

not

been

memorialized.

Such

work

product

is

discovery just as if it had been reduced to writing.”

immune

from

Ghavami, 882

F. Supp. 2d at 539; see also United States v. Deloitte LLP, 610
F.3d 129, 136 (D.C. Cir. 2010) (holding that Hickman v. Taylor, 329
U.S. 495 (1947), “provides work-product protection for intangible
work product independent of Rule 26(b)(3)”).
A document is prepared “in anticipation of litigation” if “in
light of the nature of the document and the factual situation in
the particular case, [it] can fairly be said to have been prepared
or obtained because of the prospect of litigation.”

Adlman, 134

F.3d at 1202 (quoting 8 Charles A. Wright, et al., Federal Practice
and Procedure § 2024 (1994)).

“Although a document ‘does not lose

protection . . . merely because it is created in order to assist
with a business decision,’‘[i]f, regardless of the prospect of
litigation, the document would have been prepared anyway, in the
ordinary course of business . . . , it is not entitled to work
product protection.’”

Chen-Oster v. Goldman, Sachs & Co., 293
6

F.R.D.

547,

552-53

(S.D.N.Y.

2013)

(alterations

in

original)

(quoting Adlman, 134 F.3d at 1202, and Clarke v. J.P. Morgan Chase
& Co., No. 08 Civ. 2400, 2009 WL 970940, at *7 (S.D.N.Y. April 10,
2009)).
Both attorney-client privilege and work-product immunity “may
implicitly be waived when [the] defendant asserts a claim that in
fairness requires examination of protected communications.” United
States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991); see also
John Doe Co. v. United States, 350 F.3d 299, 302 (2d Cir. 2003)
(noting that party waives both attorney-client and work product
protection by placing substance of protected documents at issue);
DeAngelis, 2015 WL 585628, at *6 (“The ‘fairness doctrine’ analysis
applies to waiver of work-product protection just as it does to
waiver

of

attorney-client

privilege.”).

A

person

may

waive

protection where he “asserts a factual claim the truth of which can
only be assessed by examination of a privileged communication,”
even is he does not explicitly rely on that communication.

Bowne

of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 488
(S.D.N.Y. 1993).

But the fact that a privileged communication may

merely be relevant to a claim or defense is insufficient to forfeit
protection.

In re County of Erie, 546 F.3d 222, 229 (2d Cir.

2008); accord Aiossa v. Bank of America, N.A., No. 10 CV 1275, 2011
WL 4026902, at *5 (E.D.N.Y. Sept. 12, 2011).

The paramount

consideration is “[w]hether fairness requires disclosure,” which
must be determined “on a case-by-case basis, and depends primarily
on the specific context in which the privilege is asserted.” In re
7

Grand Jury Proceedings, 219 F.3d 175, 183 (2d Cir. 2000).
B.

Scope of Implied Waiver

The City’s good faith defense has effected an implied waiver
here.3

See, e.g., Scott v. Chipotle Mexican Grill, Inc., 67 F.

Supp. 3d 607, 610 (S.D.N.Y. 2014) (quoting County of Erie, 546 F.3d
at 228-29).

The question, as noted above, is the waiver’s scope.

During the parties’ negotiations about the scope of the
implied waiver, the City asserted that “the scope of that waiver is
limited, and would include only communications between legal and
City officials responsible for making decisions relevant to the
issues in the case.”

(E-mail of Felice B. Ekelman dated Nov. 2,

2015 (“Ekelman E-mail”), attached as part of Exh. C to Declaration
of Gregory K. McGillivary dated Nov. 23, 2015).

The defendant now

agrees that it has waived protection over (1) “communications
between

HRA[,]

[ACS,]

or

City

officials

responsible

for

implementing and approving [the relevant] HRA [and ACS] policies
3

The City gets itself in a bit of a muddle on this point,
stating that it does not concede that it has waived any protection
(“The present discovery dispute concerns whether the assertion of
the ‘good faith defense’ has waived the attorney-client and work
product privileges, by placing the communications ‘at issue,’ and,
if so, the scope of that waiver” (Def. Memo. at 2 (emphasis
added)); “Defendant does not affirmatively waive any privileges,
but to the extent that the Court finds that this [expected]
testimony results in the implied waiver . . .” (Def. Memo. at 11))
but then asserting that “the [] issue of whether an implied waiver
arises when the good faith defense is asserted . . . is not
disputed here” (Def. Memo. at 16), and describing types of
communications it concedes are included within the implied waiver
(Def. Memo. at 2). I understand the City to have conceded the
issue not only by the representations in its opposition brief cited
directly above, but also by failing to develop any argument that an
implied waiver has not arisen, see, e.g., Chevron Corp. v.
Donziger, No. 11 Civ. 691, 2013 WL 4045326, at *1 n.3 (S.D.N.Y.
Aug. 9, 2013).
8

. . . and the lawyers from the Office of Corporation Counsel,4
HRA’s [and ACS’s] legal department[s] or outside counsel,” and (2)
“communications between lower level employees and attorneys from
the

Office

of

Corporation

Counsel,

HRA’s

[or

ACS’s]

legal

department[s][,] or outside counsel if those communications were
relevant to the advice provided by those attorneys to the HRA[,]
[ACS,] or City officials in implementing the policies at issue.”5
(Def. Memo. at 2).
the

implied

The defendant thus appears to have agreed that

waiver

includes

communications

between

attorneys

working on behalf of the City and non-attorney City or agency
employees “concerning the legality of defendant’s policies and
efforts to ensure that its policies are in compliance with the
FLSA” (Def. Memo. at 3), and that attorney-client privilege and
work product immunity shield only communications among counsel,
that is:
(1) internal communications between attorneys at HRA [and
ACS] regarding legal advice or work product relating to
the policies and practices at issue in this litigation
that were prepared in anticipation of this litigation;
(2) internal communications between attorneys of
Corporation Counsel regarding legal advice or work
product relating to the policies and practices at issue
in this litigation that were prepared in anticipation of
this litigation; (3) internal communications between HRA
[and ACS] and Corporation counsel attorneys regarding
legal advice or work product relating to the policies and
practices at issue in this litigation that were prepared
in
anticipation
of
this
litigation;
and
(4)
4

For the purposes of this opinion, the “Law Department” is
the same as the “Office of Corporation Counsel.”
5

Actually, the City states that it “never asserted the scope
of the implied waiver would not also include” this second category
of documents (Def. Memo. at 2), though this statement is difficult
to square with the position taken in the Ekelman E-mail.
9

communications between Corporation Counsel attorneys and
outside counsel regarding legal advice or work product
relating to the policies and practices at issue in this
litigation that were prepared in anticipation of this
litigation.
(Def. Memo. at 4).
But not so fast.

In what looks suspiciously like an about-

face, the defendant later asks that any waiver of the attorneyclient privilege
be limited to disclosure of communications between
attorneys for the Defendant and employees of HRA [and
ACS] who had the decision making authority to consider
and implement procedures intended to ensure Plaintiffs
were paid correctly in accordance with the FLSA, as well
as communications between attorneys for Defendant and
relevant employees of the Official [sic] of Payroll
Administration and Office of Labor Relations regarding
the
formulation
and
drafting
of
the
CityTime
certification (as both relate to claims asserted in this
lawsuit).6
(Def. Memo. at 11-12 (emphasis added)).

Put another way, the

“waiver . . . only extends to communications between the attorney
and . . . relevant decision-making authorities at the City,” that
is, “officials who had the authority to implement policies.” (Def.
Memo. at 13).

The City’s position thus appears rather confused.

In any case, the suggested limitations on the waiver over
communications between attorneys working on behalf of the City and
non-attorney City employees are inappropriate.
it

relied

on

the

advice

of

counsel

6

in

The City has said

formulating

its

FLSA

The “CityTime certification” is a certification for the
City’s web-based timekeeping system by which employees submitting
time sheets confirm that they have worked the claimed hours,
including time worked in excess of scheduled hours that would
entitle them to overtime compensation under the FLSA or a
collective bargaining agreement. (Declaration of Georgia Pestana
dated Dec. 11, 2015 (“Pestana Decl.”), ¶¶ 4, 6).
10

compliance policies.

It has therefore waived protection over

communications related to legal advice about this compliance shared
between

attorneys

and

non-attorney

employees,

whether

those

employees are “decision-makers” or “lower level employees” who
might provide input to the process.

Indeed, to the extent that

such advice was provided to employees completely disconnected from
the decision-making chain, the City has waived attorney-client
privilege over those communications, as well.

See

Scott v.

Chipotle Mexican Grill, 94 F. Supp. 3d 585, 598 (S.D.N.Y. 2015)
(noting that employer’s attorney-client privilege is vitiated by
disclosure to employees “who are not in a position to act or rely
on the legal advice contained in the communication” and collecting
cases); Traficante v. HomeQ Servicing Corp., Civ. A. No. 9-746,
2010 WL 3167435, at *2 (W.D. Pa. Aug. 10, 2010) (collecting cases).
Therefore, the defendant shall produce communications between
counsel working on behalf of the City (whether from the Law
Department, either of the agencies’ legal departments, or outside
counsel) and any non-attorney employee of the agencies or the City,
as long as it is relevant to advice provided to the agencies or the
City regarding the agencies’ FLSA compliance.
The

remaining

category

of

attorney-to-attorney communications.

information

at

issue

is

The plaintiffs contend that

these are discoverable because the implied waiver either applies or
it does not: the defendant’s assertion of its good faith defense
has waived privilege over all relevant communications related to
FLSA compliance.

But precedent teaches that implied waivers are
11

not such blunt instruments.

Rather, they must be “formulated with

caution,” In re County of Erie, 546 F.3d at 228; see also Enea v.
Bloomberg L.P., No. 12 Civ. 4656, 2015 WL 4979662, at *6 (S.D.N.Y.
Aug. 20, 2015) (describing scope of waiver arising from good faith
defense as “ordinarily [] quite narrow” (quoting Seyler v. TSystems North America, Inc., 771 F. Supp. 2d 284, 287-88 (S.D.N.Y.
2011))), “on a case-by-case basis” to be fair in light of the
“specific context in which the privilege is asserted,” In re Grand
Jury Proceedings, 219 F.3d at 183.

Indeed, the Second Circuit has
See id. (“We have also

approved limited forms of implied waiver.

recognized that a more limited form of implied waiver may be
appropriate where disclosure occurred in a context that did not
greatly prejudice the other party in the litigation.”).
The City argues that the good faith defense depends on its
“state of mind” which could not have been influenced by information
it never heard.

(Def. Memo. at 12-13).

The plaintiffs say that

details of the attorneys’ analysis must be disclosed because
without

such

disclosure

the

City

could

shield

itself

from

liquidated damages by citing advice of counsel even if counsel
“engaged in no research into the facts nor applied the law properly
to any facts in reviewing the legality of the City’s policies and
practices.”

(Pl. Memo. at 13).

To be sure, the reasonableness of

the City’s reliance on the advice of counsel could be undermined
if,

for

example,

the

plaintiffs

showed

that

counsel’s

analysis was cursory or otherwise obviously flawed.

legal

However, this

information would be of limited use to the plaintiffs unless they
12

could show that the City knew (or should have known) that the
analysis was deficient.

Communications between the various legal

departments and non-attorney City and agency employees (which will
be

produced)

should

reveal

what

the

client

sufficiency of the analysis of FLSA compliance.
however,

it

is

not

unfair

to

protect

knew

about

the

At this point,

exclusively

internal

privileged communications, and the City need not disclose them.7
Cf. Enea, 2015 WL 4979662, at *7-8 (requiring defendant to produce
for in camera review protected communications regarding internal
investigation into compliance only after discovery indicated that
defendant’s reliance on an opinion regarding legality under FLSA of
employee classification may have been unreasonable).
C.

Privilege Log

In its opening memo, the plaintiffs noted that the defendant
had failed to produce a privilege log for over a year, placing them
“in the precarious situation of requiring plaintiffs to file a
motion to compel production of certain documents when plaintiffs do
not even know that such documents exist, because defendant has
never identified them.”

(Pl. Memo. at 18).

The City apparently

provided with its opposition a privilege log claiming attorney-

7

The defendant contends that there are policy reasons to
limit any waiver in this case, worrying over the “sanctity of the
attorney-client privilege” and the potential hollowing-out of the
FLSA’s statutory defenses.
(Def. Memo. at 24).
I find those
concerns hyperbolic for the reasons recently explained by the
Honorable Sarah Netburn, U.S.M.J., in Scott, 67 F. Supp. 3d at 617
(rejecting defendant’s policy concerns because defenses other than
good faith are available to defendants and because a finding of
waiver may “serve to encourage companies to receive competent legal
advice and follow it”).
13

client privilege and work product immunity over twelve documents.8
(Defendant’s First Privilege Log (“Privilege Log”), attached as
Exh. A to Reply).

The log is deficient.9

Local Civil Rule 26.2(a)(2) requires that where privilege is
claimed

over

a

document,

the

claimant

must

provide

“the

relationship of the author, addressees, and recipients to each
other,” unless that relationship is apparent.
26.2(a)(2)(A).

Local Civil Rule

The relationship among those identified on the

privilege log is neither apparent nor described in the log.

This

is of particular import here because, without knowing such details,
it is impossible to determine whether these communications fall
into the category over which the privilege has been waived.
Moreover, it is not clear that the log includes all documents over
which

the

City

claims

protection.

As

the

plaintiffs

note,

notwithstanding their broad discovery requests, the log lists only
twelve documents, all created in a period of fewer than five months

8

I say “apparently” because, although one of the declarations
filed with the opposition indicates that a privilege log is
attached (Pestana Decl., ¶ 3), no such document is included. The
plaintiffs, however, attach the log to their reply, which also
notes that although the document was produced only in the De la
Cruz case, it reportedly applies to both actions.
(Reply at 6
n.3).
9

The plaintiffs assert that the log is also untimely under
Local Civil Rule 26.2, which requires claims of privilege to be
asserted “in writing at the time of the response” to the discovery
request, and that therefore the City has waived all claims of
privilege. Local Civil Rule 26.2(a), (b); (Pl. Memo. at 17-18;
Reply at 6-7). Although the tardiness would be a basis for deeming
the City’s claims of privilege waived, I decline to do so. See,
e.g., In re Chevron Corp., 749 F. Supp. 2d 170, 181-82 & n.50
(S.D.N.Y. 2010) (noting that judges have discretion to decline to
enforce local rules).
14

in 2009, and all connected with the CityTime certification. (Reply
at 8).
Additionally, the City’s support for its claim of work product
immunity over these same documents is insufficient.

According to

the defendant, prior to the roll-out of CityTime and the drafting
of the certification, the City was named as a defendant in several
cases alleging that employees were not paid for all time worked.
(Pestana Decl., ¶¶ 4, 8).

The City asserts that the certification

“was drafted as an effort to eliminate future claims in the
existing litigations, to avoid potential future litigation, and to
ensure compliance with the FLSA generally.” (Pestana Decl., ¶ 10).
As noted above, a document is not protected as work product if
it would have been prepared in the ordinary course of business in
the absence of litigation.

Chen-Oster, 293 F.R.D. at 552-53.

Moreover, “[g]eneralized steps to avoid non-specific litigation are
not accorded work product protection.”
cases).

Id. at 553 (collecting

Indeed, “[t]o find that avoidance of litigation without

more constitutes ‘in anticipation of litigation’ would represent an
insurmountable barrier to normal discovery and could subsume all
compliance activities by a company as protected from discovery.”
Id. (quoting In re Grand Jury Proceedings, No. M-11-189, 2001 WL
1167497, at *15 (S.D.N.Y. Oct. 3, 2001)).
Given these precepts, the declaration the City provides does
not meet its burden of showing that the documents in its privilege
log deserve work product protection.

The mere statement that the

subject documents were created to “avoid [unidentified] potential
15

future

litigation[]

generally”

is

not

and

to

ensure

sufficient;

compliance

rather,

it

with

indicates

the
that

FLSA
the

documents would have been created even in the absence of the thenactive FLSA litigation the City cites.

(Pestana Decl., ¶¶ 8-11).

Indeed, the notion that the certification itself was prompted by
litigation

seems

farfetched:

it

appears

to

be

a

standard

declaration aimed at general FLSA compliance that is required
before submission of any employee’s CityTime time sheet.
Decl., ¶ 6).
protection

has

(Pestana

To be sure, the underlying materials over which
been

claimed

may

have

been

directed

more

specifically at one or more particular FLSA actions that the City
was litigating or reasonably anticipated.

However, the City’s

submission does not establish that.
Rather than ordering disclosure of these documents, however,
I will allow the defendant to provide the plaintiffs with a
supplemented privilege log that addresses these concerns.
D.

Deposition Witness

In addition, the City must produce a witness to provide
testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil
Procedure regarding the City’s efforts to comply with the Fair
Labor Standards Act.

This opinion has clarified the extent of the

City’s waiver of privilege, as well as the requirements for a
proper assertion of work product privilege.

The deponent may

interpose appropriate objections based on privilege when specific
questions are asked.

See, e.g., Arkwright Mutual Insurance Co. v.

National Union Fire Insurance Co. of Pittsburgh, No. 90 Civ. 7811,
16

1993

WL

34618,

at

*3

iS.D.N.Y.

feb.

4,

:L993);

cf.

Travelers

Casualty & Surety Co. v. J.D. Elliott & Co., No. 03 Civ. 9720, 2004
WL 2339549,

at

*2

(S.D.N.Y.

Oct.

5,

2004)

(litigant must produce

deposition witness unless it has shown that any testimony witness
could give would be privileged).
Conclusion
The plaintiffs' motions to compel
City of New York, 14
of New York,

No.

r·
vJ_V.

4142; Docket no.

14 Civ.

9220)

part as discussed above.

i3)

57 in Foster v.

56 in De la Cruz v. City

are granted in part and denied in

Within fourteen days of the date of this

order, the defendant shall
has waived privilege,

(Docket no.

i2)

ill produce the documents over which it
serve a supplemented privilege log,

designate a Rule 30ib) i6)

witness.

SO ORDERED.

O

~ ~. :;;~~

Dated:

JAMES C. FRANCIS IV
UNITED STATES MAGJST1'ATE JUDGE

New York, Now York
February 5, 2016

Copies transmitted to:
Gregory K. McGillivary, Esq.
David W. Rickseckcr, Esq.
Diar.a j . Nobile, Esc:r.
~clly A.
El~in,
Esq.
Robin L.S. Burroughs, Esq.
Sarah M. Block, Esq.
D1ana ;; . Ncb1 le, !Csq.
Woodley & McGillivary
1101 Vermont Ave., N.W., Suite 1000
Washington, D.C. 70005

17

and

Hope A. Pordy, Esq.
Spivak Lipton Watanabe Spivak & Moss LLP
1700 Broadway, Suite 2100
New York, NY 10019
Adam S. Gross, Esq.
Felice B. Ekelman, Esq.
Steven J. Seidenfeld, Esq.
Sarah K. Hook, Esq.
Jackson Lewis P.C.
666 Third Ave.
29th Floor
New York, NY 10017
Jeffrey W. Brecher, Esq.
Jackson Lewis P.C.
58 South Service Rd., Suite 250
Melville, NY 11747
Andrea M. O’Connor, Esq.
New York City Law Department
100 Church St.
New York, NY 10007

18