Barbini et al v. First Niagara Bank, N.A. et al

Filing 78

OPINION & ORDER: For the reasons set forth above, the Court affirms Judge McCarthy's Memorandum and Order. That is, it DENIES the Bank's motion for a protective order and GRANTS in part Plaintiffs' motion to reopen discovery insofar as deposing McMichael and Regina. With regards to these depositions, however, Plaintiffs questioning is limited to McMichael's and Regina's conversations regarding the basis for Lawless' discipline and Lawless' and Plaintiffs&# 039; terminations. The Bank is also directed to produce a privilege log describing the documents being withheld and identifying the nature of the privilege being claimed so that, if necessary, Judge McCarthy can review such documents in camera. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 4/29/2019) (rj)

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Plaintiffs,
16-cv-7887(NSR)(JCM)
OPINION & ORDER

-againstFIRST NIAGARA BANK, N.A., et al.,
Defendants.

NELSON S. ROMAN, District Court Judge
The instant case presents a thorny issue of attorney-client privilege that often accompanies
corporate internal investigations. In this particular case, a defendant bank conducted a sexual
harassment investigation in response to employee complaints about individual defendant Hugh
Lawless ("Lawless"). The bank consulted its in-house legal counsel before terminating certain
employees involved. Subsequent to those terminations, Plaintiffs Claudia Barbini and Maryetta
Henry commenced this litigation, raising claims for employment discrimination and retaliation.

(See Complaint, ("Compl."), ECF No. 7; First Amended Complaint, ("FAC"), ECF No. 26.)
Subsequently, on May 7, 2018, KeyBank National Association1 ("KeyBank" or "Bank")
submitted a Letter Motion seeking a Protective Order to preclude Plaintiffs from asking questions
concerning legal advice provided by the Bank's in-house counsel. (Letter Mot. for Protective
Order, ECF No. 49.) Plaintiffs then submitted a Letter Motion seeking to reopen two defendants'
depositions and requesting the Bank's privilege log that described the documents being withheld
and the privilege being claimed. (Rep. Letter Mot., ECF No. 50.)
On July 16, 2018, Magistrate Judge McCarthy issued a Memorandum and Order denying
the Bank's Motion for a protective order and granting in part Plaintiffs' Motion to reopen

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CLAUDIA BARBINI, et al.,

Defendant KeyBank National Association is the successor by merger to First Niagara (ECF No. 47-1 at 1)

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discovery, including defendants Robert McMichael’s and Kotyuk Regina’s depositions, to allow
Plaintiffs further questioning about the discussions leading up to the Bank’s decision to issue a
final written warning and terminate three employees. (ECF No. 61.)
On July 31, 2018, Defendants appealed Judge McCarthy’s decision insofar as denying their
request for a protective order and granting Plaintiffs’ request to reopen discovery to allow further
questioning of McMichael. (See ECF Nos. 62, 62-1, at 3.)
For the following reasons, this Court affirms Judge McCarthy’s Order. 2
BACKGROUND
In August 2015, Plaintiffs Claudia Barbini and Maryetta Henry (“Plaintiffs”), then
employees at First Niagara Bank, N.A. (“Bank”), complained about sexual harassment from their
manager, Defendant Hugh Lawless (“Lawless”). (ECF No. 50, at 1.) Consequently, the Bank
assigned Robert McMichael (“McMichael”), a Human Resources representative, to investigate the
sexual harassment complaint. (ECF No. 49, at 2.) Based on McMichael’s recommendation, the
Bank issued a “final written warning” to Lawless. (Id.) Shortly thereafter, the Bank terminated
Plaintiffs and Lawless for alleged violations of New York State notary law and First Niagara
Bank’s notary policy. (Id.)
Plaintiffs subsequently commenced this litigation alleging that the Bank “used the notary
policy as a pre-text to terminate them [for complaining about harassment]” (ECF No. 50, at 1.) In
connection with their case, they deposed McMichael. During McMichael’s deposition, they asked
him about his decision to give Lawless a “final written warning.” (ECF No. 47-2, at 3.) McMichael

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In the body of Judge McCarthy’s Order, she indicated that she would allow further questioning of both McMichael
and Regina in order to allow Plaintiffs to further question about the basis for issuing the final written warning to
Lawless and for terminating Lawless and Plaintiffs. In the Order’s concluding paragraph, however, there is only a
reference to allowing the deposition of McMichael to be reopened. The Court takes this inconsistency as an inadvertent
error. But since Defendants have only appealed the re-opening of McMichael’s deposition, the Court is constrained to
assessing the merits of that appeal. To the extent that Defendants intended to appeal the reopening of Regina’s
deposition as well, they are to raise that issue with Judge McCarthy.

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relayed that he discussed the decision with Lawless’ manager, Irina Damyanidu (“Damyanidu”),
and the Bank’s in-house counsel, Lura Bechtel (“Bechtel”). (Id. at 3-4):
Q: Going back briefly to your decision to issue a final warning, you mentioned that you
discussed it internally with your team and you indicated that in-house counsel was one of
the team members you spoke with
A: Yes
Q: Who did you speak with in the in-house counsel office?
A: Lura Bechtel
Q: Who else was on the team?
A: Irina
Q: Anyone else?
A: No, no one else
Q: Between the three of you, you discussed it in-house and came to the conclusion that you
should issue a final warning?
A: Yes.
McMichael repeatedly testified that he thoroughly discussed the appropriate cause of action with
Bechtel and Damyanidu, but ultimately decided to issue a final written warning to Lawless instead
of terminating him. Whenever Plaintiffs further probed McMichael about Bechtel’s “advice” or
“perspective” about issuing a final written warning, McMichael’s counsel objected, invoking
attorney-client privilege. (See id. at 4-5, 9-11.)
Plaintiffs’ counsel also asked McMichael about whether he consulted Bechtel about New
York’s notary laws, and McMichael’s counsel again invoked attorney-client privilege, though he
later retracted his objections. (Id. at 9-25.) McMichael, however, indicated that while he consulted

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Bechtel and Damyanidu with regards to issuing the final written warning against Lawless, he did
not discuss the company’s notary policy with them at any time. (Id.) Rather, with regards to the
notary policy, he consulted Regina. (Id. at 11-12.)
Defendants argue that any communication Bechtel had with McMichael or others at the
Bank regarding the Bank’s decision to issue a final written warning were solely for the purpose of
providing legal advice on behalf of the Bank and were therefore privileged communications. (See
ECF No. 47.) They argue that Judge McCarthy’s decision allowing Plaintiffs to reopen
McMichael’s deposition and requiring the Bank to turn over a privilege log should be overturned
because: 1) The Bank did not rely on it in-house counsel’s advice regarding the sexual harassment
investigation or final written warning in deciding to terminate the three employees, and 2) the Case
Detail Report and e-mails concerning the Bank’s investigation have been produced; thus no
documents concerning the investigation have been withheld on the basis of privilege. (See
Objections to Memorandum & Order, ECF No. 62-2, at 9.)
Plaintiff’s disagree. (See ECF No. 64.) They argue that Judge McCarthy’s decision should
be confirmed because while the Bank did not affirmatively assert that it relied on communications
with counsel in making its decision to terminate the employees, other evidence reflects that Bechtel
“participated in the investigation, reviewed the investigative findings, and made determinations as
to whether sexual harassment had occurred, and whether and how Mr. Lawless should be
disciplined.” (See Plaintiff’s Opposition, (“Pl. Opp.”), ECF No. 64, at 5.) Further, they argue that
the lower court properly found a waiver of attorney client privilege under both the
Faragher/Ellerth defense and advice of counsel defense. (Id. at 7.)

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LEGAL STANDARDS
Standard for Reviewing Magistrate Judge Opinions
Magistrate judges are afforded broad discretion in resolving discovery disputes, and their
decisions should only be reversed if the district court determines that they abused that discretion.
Sadowski v. Tech. Career Insts., 93 Civ. 0455, 1994 U.S. Dist. LEXIS 15590, at *1 (S.D.N.Y.
Nov. 2, 1994). When reviewing a magistrate judge’s ruling on a non-dispositive pretrial matter,
“the district judge… must…modify or set aside any part of the order that is clearly erroneous or
is contrary to law.” Fed. R. Civ. P. 72(a). A finding is “clearly erroneous” if the “reviewing
court…is left with the definite and firm conviction that a mistake has been committed,” and is
“contrary to law” if it “fails to apply or misapplies relevant statutes, case law, or rules of
procedure.” MASTRR Adjustable Rate Mortgs. Trust v. UBS Real Estate Sec. Inc., No. 12-CV7322, 2013 WL 6840282, at *1 (S.D.N.Y. Dec. 27, 2013). Additionally, parties’ objections to
the magistrate judge’s ruling may not be "conclusory or general," and the parties’ briefs "may
not simply regurgitate the original briefs to the magistrate judge." Thomas v. Astrue, 674 F. Supp.
2d 507,511 (S.D.N.Y. 2009) (internal quotation marks and citation omitted).
Protective Orders
Federal Rule of Civil Procedure 26(c) provides that a court may issue “an order to protect
a party or person [from whom discovery is sought] from annoyance, embarrassment, oppression,
or undue burden or expense.” Fed. R. Civ. P. 26(c). The district 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 party seeking a protective order bears the
burden of establishing that good cause for the order exists.” Duling v. Gristede’s Operating
Corp., 266 F.R.D. 66, 71 (S.D.N.Y. Mar. 30, 2010). “Good cause is established by

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‘demonstrating a particular need for protection.’ ” Id. (quoting Cipollone v. Liggett Group, Inc.,
785 F.2d 1108, 1121 (3d Cir. 1986)). “Ordinarily, good cause exists ‘when a party shows that
disclosure will result in a clearly defined, specific and serious injury.’ ” In re Terrorist Attacks
on Sept. 11, 2001, 454 F. Supp. 2d 220, 222 (S.D.N.Y. 2006) (quoting Shingara v. Skiles, 420
F.3d 301, 306 (3d Cir. 2005)).
Discovery and Materials Protected by Attorney-Client Privilege
Under the federal rules, "[p]arties may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any party." Fed. R. Civ. P. 26(b)(l).
Excluded, however, are communications protected by the attorney-client privilege. Attorneyclient privilege protects “communications (1) between a client and his or her attorney (2) that
are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or
providing legal advice.” United States v. Meijia, 655 F.3d 126, 132 (2d Cir. 2011).
“For the privilege to apply, the communication itself must be ‘primarily or predominantly
of legal character.’” Egiazaryan v. Zalmayev, 290 F.R.D. 421, 428 (S.D.N.Y. 2013) (quoting
Rossi v. Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588, 594 (1989)). “Fundamentally,
legal advice involves the interpretation and application of legal principles to guide future conduct
or to assess past conduct.” In re County of Erie, 473 F.3d. 413, 419 (2d Cir. 2007) “The burden
is on a party claiming the protection of a privilege to establish those facts that are essential
elements of the privileged relationship.” In re Grand Jury Subpoena Dtd. Jan. 4, 1984, 750 F.2d
223, 224 (2d Cir. 1984).
“Application of the attorney-client privilege to the corporate context poses ‘special
problems.’” Complex Sys., Inc. v. ABN AMRO Bank N.V., 279 F.R.D. 140, 150 (S.D.N.Y. 2011)
(quoting Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348 (1985)). “In-house

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counsel often fulfill the dual role of legal advisor and business consultant.” MSF Holding, Ltd. v.
Fiduciary Tr. Co. Int’l, No. 03-CV-1818(PKL)(JCF), 2005 WL 3338510, at *1 (S.D.N.Y Dec. 7,
2005). “The court therefore must proceed cautiously, recognizing that the application of the
privilege ‘risks creating an intolerably large zone of sanctuary since many corporations
continuously consult attorneys.’” Ovesen v. Mitsubishi Heavy Indus. Of Am. Inc., No. 04-CV2849(JGK)(FM), 2009 WL 195853, at *3 (S.D.N.Y. Jan. 23, 2009) (quoting First Chicago Int’l v.
United Exch. Co., 125 F.R.D. 55, 57 (S.D.N.Y. 1989)). “In cases involving corporations and inhouse counsel, courts have maintained a stricter standard for determining whether to protect
confidential information through the attorney-client privilege.” See e.g. Bank Brussells Lambert v.
Credit Lyonnais (Suisse), S.A., 220 F. Supp. 2d 283, 286 (S.D.N.Y. 2002) (explaining that while
attorney-client privilege developed “to encourage full and frank communication between attorneys
and their clients and thereby promote broader public interests,” courts more narrowly the privilege
with in-house legal counsel because they “are employees of their client, and their livelihood
depends on that single corporate client…[thus], they are not as independent as outside counsel.”).
Waiving Attorney-Client Privilege
“[R]ules which result in the waiver of the [attorney-client] privilege and thus possess the
potential to weaken attorney-client trust,” have been formulated with caution. In re County of Erie,
546 F.3d 222, 228 (2d Cir. 2008). Courts have found waiver by implication in three circumstances:
(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.” Id. A party cannot partially
disclose privileged communications or affirmatively rely on privileged communications to support
its claim or defense and then shield the underlying communications from scrutiny by the opposing

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party.” In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000). A person may waive
protection where he asserts a factual claim of truth of which can only be asserted by examination
of a privileged communication. Browne, Inc., v. AmBase Corp., 150 F.R.D. 465 (S.D.N.Y. 1993).
Any type of advice of counsel may be waived where a party’s state of mind, such as his good faith
belief in the lawfulness of his conduct, is relied upon in support of a defense. MBIA Ins. Corp. v.
Patriarch Partners VIII, LLC., 2012 U.S. Dist. LEXIS 92435, at *17-18 (S.D.N.Y. July 2, 2012).
The Faragher/Ellerth Defense
“In discrimination cases, the issue of waiver frequently arises when a defendant raises what
is known as the Faragher/Ellerth defense.” Johnson v. J. Walter Thompson U.S.A., LLC, No. 16CV-1805(JPO)(JCF), 2017 WL 3432301, at *8 (S.D.N.Y. Aug. 9, 2017). The Faragher/Ellerth
Defense allows an employer to escape liability if it can show (1) the employer exercised reasonable
care to prevent and correct any-harassing behavior and (2) that the plaintiff unreasonably failed to
take advantage of the preventative or corrective opportunities that the employer provided. Vance
v. Ball State University, 570 U.S. 421, 423 (2013). “When an employer puts the reasonableness of
an internal investigation at issue by asserting the Faragher/Ellerth defense, the employer waives
any privilege that might otherwise apply to documents concerning that investigation.” Koumoulis
v. Independent Fin. Marketing Group Inc., 295 F.R.D. 28, 41 (E.D.N.Y. 2013).
DISCUSSION
Plaintiffs argue that Judge McCarthy’s decision should be upheld because even if the bank
expressly disclaimed reliance on counsel as part of its defense, through the substance of their
answer and testimonial evidence, they invoked Farragher/Elleth and advice of counsel defenses.
(See Pl. Opp., ECF No. 64, at 5.) They also argue that Defendants failed to prove that they would
be prejudiced by the further questioning of McMichael about his communications with Bechtel or

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by turning over additional documentary evidence related to those communications. Hence, they
argue, Judge McCarthy properly found that Defendants failed to prove need for a protective order.
Because there are two sets of communications at issue – those related to the final written
warning and those related to New York Notary Law – the Court discusses Judge McCarthy’s ruling
on the attorney-client privilege attached to each separately.
Communications Related to New York Notary Laws
The Court agrees with Judge McCarthy that Bechtel’s communications with McMichael
and Regina likely involved both legal and business advice. As a matter of law, the purpose of
communication “need not be exclusively legal in order for the privilege to attach.” Johnson, 2017
WL 3432301, at *3. The Court finds that any communications that were just about New York
notary laws were undisputedly legal in nature. Thus, the Court upholds Judge McCarthy’s decision
that those communications are covered by attorney-client privilege. (See Order, ECF No. 61.)
Communications Related to the “Final Written Notice”
The Court next addresses the written records related to issuing final written notice to
Lawless. The record suggests that the Bank generally involved in-house counsel whenever
reviewing allegations of misconduct. (See ECF No. 50-1, at 7.) It also suggests that when the Bank
invited advice from its in-house counsel, rather than a non-legal manager, it was usually seeking
legal advice. The deposition transcript and Betchel’s sworn declaration also reflects that Betchel’s
advice was generally legal in nature. (See ECF No. 47-1 at ¶¶ 7, 8; ECF No. 50-1 at 7, 13–14).
And one of Bechtel’s regular duties was to provide employment-related legal advice on various
personnel decisions. Communicating “legal analysis to the person ultimately deciding whether to
fire and employee” is “precisely the type of legal advice that is protected by the attorney-client
privilege.” Fletcher v. ABM Building Value, No. 14-CV-4712(NRB), 2017 WL 1536059, at *3

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(S.D.N.Y. Apr. 18, 2017). Accordingly, the Court finds that Judge McCarthy correctly held that
these communications were also covered by attorney-client privilege.
Waiver of Attorney-Client Privilege
Plaintiffs argue that Judge McCarthy correctly found a waiver of attorney-client privilege,
as the Bank waived its attorney-client privilege in at least two ways, neither of which involved
expressly raising an “advice of counsel” defense. (Pl. Opp., at 4-9.) The Bank, however, claims
that because Judge McCarthy repeatedly admitted that the conversations with Bechtel likely
involved legal advice, and because the Bank did not expressly assert a Faragher/Ellerth or advice
of counsel defense in its answer, Judge McCarthy’s decision was clearly erroneous, and those
communications ought to remain privileged. (Def. Mem. at 5-9.)
The Court agrees with Plaintiffs. At the onset, neither party disputes that the advice related
to the harassment investigation and notary laws were sufficiently legal in nature. The parties
essentially contest whether the Bank has waived its privilege over such communications. To that
end, the Court agrees with Judge McCarthy that the Bank has not expressly asserted an “advice of
counsel” defense anywhere in its answer. And as Judge McCarthy noted, Defendants expressly
disclaimed reliance on counsel in a subsequent letter. (See ECF No. 55, at 2.) But, as Judge
McCarthy also noted, these facts alone do not control whether Defendants waived their privilege
because even where defendants have not asserted an advice of counsel defense, courts have found
waivers if the evidence implies that defendants relied on counsel’s advice, see In re Grand Jury,
219 F.3d 175, or defendants assert that they undertook good faith efforts to prevent and remedy
any alleged discrimination or retaliation pursuant to their internal procedures and plaintiffs failed
to fully avail themselves of available avenues—i.e. raised a Faragher/Ellerth defense.

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The Court agrees with Judge McCarthy. Defendants did—through testimony relating to
their use of counsel’s advice and through the content of their answer—waive their privilege.
Turning first to Defendants’ implied reliance on counsel, throughout his deposition,
McMichael stated that Bechtel made or assisted in making pivotal determinations regarding how
to handle the sexual harassment investigation and how to discipline the individuals involved. (See
generally ECF No. 50-1.) Although a close call, McMichael’s testimony went further than just
“generalized references to counsel’s advice.” (See e.g. id. at 47-48) (“Q: So, you made the decision
to issue him a final warning. Why did you choose to issue him a final warning instead of
terminate?; A: We thoroughly discussed it internally through our process and talked—
(interrupted); Q: Who is we?; A: We being our in-house counsel, Irina…”); (id. at 55) (“Q: In fact,
it wasn’t confirmed that [Lawless’ sending the inappropriate text message] was an accident, you
were relying on what people were telling you; is that right?; A: Correct.”) (emphasis added).
Again, the Second Circuit has explained at-length that waiver by implication typically
occurs when a client testifies about portions of the attorney-client communication, places the
relationship directly at issue, or asserts reliance on the attorney’s advice as part of its claim or
defense. In re Erie, 546 F.3d 222. It has further explained that the “key to a finding of implied
reliance” is assessing whether the witness testified about “the basis of his understanding that his
actions were legal.” Id. at 228.
Judge McCarthy was not clearly erroneous in finding that McMichael’s decided to issue a
final written warning to Lawless after “thoroughly discuss[ing] it” with his in-house counsel and
relying on facts and characterizations that others relayed to him. The Bank’s defense that its reason
for terminating Plaintiffs was not discrimination or retaliation and was solely due to Plaintiffs’
violating the notary policy hinges on the two investigations being truly separate. But the only way

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to assess their separateness is by accepting McMichael’s testimony that he relied on Bechtel’s
advice and handled the first one appropriately and independently of the second. The Court finds
that this argument opens the door under In re County of Erie as the Bank indirectly asserts reliance
on Bechtel’s legal advice as a defense to Plaintiffs’ employment discrimination claims.
More significantly, Defendants have also raised a Faragher/Ellerth defense twice in their
answer. They raise it first by asserting that “First Niagara asserts that it undertook good faith efforts
to prevent and remedy any alleged discrimination or retaliation and that Plaintiffs unreasonably
failed to avail themselves of First Niagara’s internal procedures for remedying any such
discrimination or retaliation” (see Answer ¶ 48), and second by stating that “any employment
actions taken by First Niagara towards Plaintiffs was for reasons that were job-related and
consistent with business necessity.” (Id. ¶ 37.)
In stating that the Bank “undertook good faith efforts to prevent and remedy any alleged
discrimination or retaliation,” and that Plaintiffs’ failed to avail themselves of a particular remedy,
the Bank is raising the quintessential Faragher/Ellerth defense. It is implying that the sexual
harassment investigation was handled according to protocol and had nothing to do with their
subsequently firing Plaintiffs for violating the notary policy. But again, in making this compound
defense, the Bank is unilaterally relying on the confidential and privileged sexual harassment
investigation, which it suggests was handled appropriately.
Such one-sided reliance creates the type of unfairness to opposing counsel that waives the
communication’s privilege. See In re Cty. of Erie, 546 F.3d 222 (2d Cir. 2008) (explaining that
underlying the case-by-case determination that a privilege should be forfeited is the notion of
fundamental unfairness—that is “the type of unfairness to the adversary that results in litigation
circumstances when a party uses an assertion of fact to influence the decisionmaker while denying

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its adversary access to privileged material potentially capable of rebutting the assertion”) (citation
omitted); see also Johnson v. J. Walter Thompson U.S.A., LLC, No. 16-cv-1805, 2017 WL
3432301, at *7 (S.D.N.Y. Aug. 9, 2017) (“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[]’”) (quoting Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 488
(S.D.N.Y. 1993)).
Accordingly, Judge McCarthy’s finding that that the Bank functionally raised a
Faragher/Ellerth defense, which waived its attorney-client privilege, was not clearly erroneous.
Limited Re-Opening Deposition Questioning of McMichael and Regina
Judge McCarthy did not find that Defendants waived the attorney-client privilege carte
blanche. Rather she limited the waiver to Bechtel’s “advice only with respect to their decision to
terminate Plaintiff[s]’ employment.” (See Order, ECF No. 61, at 10.) Accordingly, she permitted
Plaintiffs “to question McMichael and Regina regarding the legal advice that Bechtel provided in
connection with the decision to give Lawless the final warning and the later decisions to terminate
Lawless and Plaintiffs.” (Id.)
The Court finds these parameters appropriate for reopening depositions. See Asberry, 2009
WL 3073360, at *2 (permitting questioning of counsel as “to the advice provided by him or any
other attorney concerning the possibility of terminating employment, including all information that
was considered in connection with such advice.”) While Defendants repeatedly try to frame the
issues with the Bank’s harassment policy and with notary policy as separate, they are intimately
related as Defendants’ only defense for why the harassment investigation was not the basis for the
terminations is that the notary issue was.

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Defendants cannot have their cake and eat it too. There is virtually no way for any
decisionmaker or adversary to assess the veracity of Defendants’ defense if the documents and
conversations related to both investigations are concealed. This is precisely the type of situation in
which Courts have found an implied waiver of attorney-client privilege. See e.g., John Doe Co. v.
United States, 350 F.3d 299, 306 (2d Cir. 2003) (explaining that it would be unfair to allow a party
to “use an assertion of fact to influence the decision maker while denying its adversary access to
privileged material potentially capable of rebutting the assertion.”)
Accordingly, Judge McCarthy’s decision to limitedly reopen deposition questioning of
McMichael and Regina is affirmed.
Disclosure of Documentation from Human Resources Investigation
Plaintiffs lastly request that the Court order the Bank to disclose documentation from First
Niagra’s sexual harassment and notary investigations that may have been withheld on the basis of
privilege. (ECF No. 50, at 1.) For similar reasons that the Court finds it appropriate to limitedly
reopen certain depositions, the Court finds it appropriate to permit access to the Bank’s
documentary records related to the investigation that have not been turned over.
Further, the Court agrees that Defendants have not set forth any harm that further document
discovery would cause Defendants. Defendants' only reason for seeking a protective order is that
they intended to keep their communications confidential. Defendants do not allege that disclosing
the conversations that Bechtel had with McMichael or Regina during the notary and sexual
harassment investigations would reveal any information related to Defendants' litigation strategy.
As such, Defendants have not met their burden of proof for getting a protective order.

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CONCLUSION
For the reasons set forth above, the Court affirms Judge McCarthy's Memorandum and
Order. That is, it DENIES the Bank's motion for a protective order and GRANTS in part Plaintiffs'
motion to reopen discovery insofar as deposing McMichael and Regina. With regards to these
depositions, however, Plaintiffs questioning is limited to McMichael's and Regina's conversations
regarding the basis for Lawless' discipline and Lawless' and Plaintiffs' terminations.
The Bank is also directed to produce a privilege log describing the documents being
withheld and identifying the nature of the privilege being claimed so that, if necessary, Judge
McCarthy can review such documents in camera.

SO ORDERED:

Dated: April 29, 2019
White Plains, NY

~

NELSON S. ROMAN
United States District Judge

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