McKnight V. Honeywell Safety Products Inc.

Filing 185

MEMORANDUM AND ORDER denying 173 Motion for Reconsideration ; denying 178 Motion for Reconsideration. The motions for reconsideration of the 2019 decision and to compel (ECF Nos. 173, 178) are denied. So Ordered by Magistrate Judge Patricia A. Sullivan on 10/24/2024. (Saucier, Martha)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
BARBARA MCKNIGHT and
SHEILA ANDERSON,
Individually and on behalf of all
Other Persons Similarly Situated,
Plaintiffs,
v.
HONEYWELL SAFETY PRODUCTS
USA, INC. and HONEYWELL
INTERNATIONAL, INC., DAVID M.
COTE, CARL JOHNSON, and MARK R.
JAMES, in their Official and Individual
Capacities,
Defendants.

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C.A. No. 16-132MSM

MEMORANDUM AND ORDER
PATRICIA A. SULLIVAN, United States Magistrate Judge.
Plaintiffs are procurement personnel or buyers (“Buyers”) employed or formerly
employed by the Honeywell Defendants (Honeywell Safety Products USA, Inc. and Honeywell
International, Inc.). They have brought a collective action pursuant to 29 U.S.C. § 216(b), the
Fair Labor Standards Act (“FLSA”).1 The Buyers claim that they were improperly classified as
“exempt,” required to work more than forty hours per week and not paid the overtime to which
they were entitled under the FLSA. Central to their claim is Defendants’ approach to
classification of employees as exempt or non-exempt under the FLSA during the class period.
The Court has conditionally certified the class and set a schedule pursuant to which the period

1

The Third Amended Complaint also asserts state law claims. ECF No. 105. However, Plaintiffs’ motions
reference only their FLSA claims. ECF Nos. 173, 178. Relatedly, Plaintiffs have advised the Court that the Rhode
Island state wage law claim has been dismissed from the case. ECF No. 178 at 5 n.1. Therefore, the Court’s
consideration of Plaintiffs’ motions is focused only on the federal law FLSA claim.

for limited discovery related to final certification of the collective closed on September 1, 2024.
Text Order of Apr. 23, 2024.
Filed shortly before the closure deadline and now pending before the Court are Plaintiffs’
Motion and Amended Motion for Reconsideration and to Compel. ECF Nos. 173, 178. These
motions ask the Court to reconsider its determination of February 5, 2019, sustaining
Defendants’ attorney-client privilege assertion following briefing, argument and an in camera
review of documents. See McKnight v. Honeywell Safety Prod. USA, Inc., C.A. No. 16132WES, 2019 WL 452741 (D.R.I. Feb. 5, 2019). Plaintiffs now rely on a new argument that
Defendants waived the attorney-client privilege by asserting the defense of good faith reliance on
advice of counsel, a defense that relates to the FLSA affirmative defenses created by 29 U.S.C.
§§ 259(a)2 and 260.3 Based on the same argument, Plaintiffs also seek to overcome Defendants’
invocation of the attorney-client privilege in certain interrogatory/document responses,4 as well
as to convene a new Fed. R. Civ. P. 30(b)(6) deposition of a lawyer to testify regarding legal
advice pertaining to the Buyer classification as exempt or nonexempt. As grounds for this relief,
Plaintiffs pointed to Defendants’ assertion of the now abandoned Fifth Affirmative Defense,5 and
Defendants’ ongoing (as of the filing of the motions) assertion of the Fourth Affirmative

2

Pursuant to 29 U.S.C. § 259(a), an employer can avoid liability if it can prove that an alleged FLSA violation was
committed in good faith reliance on applicable law.

3

Pursuant to 29 U.S.C. § 260, an employer can avoid liquidated damages for an FLSA violation if it can prove that
it acted in good faith reliance based on the reasonable belief in the lawfulness of the conduct.
4

Plaintiffs confirmed at the hearing that the documents they now seek appear to be the same set that was submitted
for in camera review in 2019.

5

Echoing 29 U.S.C. § 259(a), the Fifth Affirmative Defense stated: “To the extent they are found to have violated
the RIGL, Defendants had a good faith basis to believe that their underpayment of wages was in compliance with
the law.” ECF No. 107 at 10.

2

Defense.6 Missing from the first iteration of the motions, but argued in the second, Plaintiffs
also contend that Defendants waived the attorney-client privilege by responding to Interrogatory
No. 8 without invoking it. ECF No. 178 at 2.
In seeking this relief so late in this phase of the case after failing to raise the waiver
argument when they challenged Defendants’ invocation of the attorney-client privilege more
than five years ago in 2019, Plaintiffs represent that this argument was not presented to the Court
in 2019 through “inadvertence.” ECF No. 173 at 1. Except for Interrogatory No. 8, discussed
infra, they do not point to any material change in circumstances, new facts or newly developed
law, nor do they contend that the Court committed any error in its determination of the
arguments that were presented in 2019. Rather, citing United States ex rel. Berkley v. Ocean
State, LLC, C.A. No. 20-538-JJM-PAS, 2024 WL 3201393, at *2 (D.R.I. June 26, 2024), they
argue that it would be fundamentally unfair and manifestly unjust to Plaintiffs and to the trier of
fact for the attorney-client privilege to be upheld, especially to the extent that Defendants rely on
the Fourth Affirmative Defense. In that regard, Plaintiffs contend that the Court should look past
Defendants’ facile contention that the Fourth Affirmative Defense does not put advice of counsel
in issue; Plaintiffs point out that this Defense expressly tracks the defense to liquidated damages
created by 29 U.S.C. § 260 by affirmatively alleging that Defendants had “reasonable grounds
for believing” that their classification of Buyers did not violate the FLSA.
In response to the motions, Defendants argue that there is no justification for the
extraordinary remedy of reconsideration of the 2019 decision in these circumstances, that
reconsideration is untimely and (with the relevant discovery long since concluded in 2018)

6

Echoing 29 U.S.C. § 260, the Fourth Affirmative Defense stated: “Defendants had reasonable grounds for
believing that any act or omission complained of on their part was not a violation of the FLSA or RIGL.” ECF No.
107 at 9.

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would be prejudicial, and that the Court should simply refuse to take up the argument at this late
stage of the case. Defendants rely inter alia on Christianson v. Colt Indus. Operating Corp.,
which holds that, “courts should be loathe to [revisit prior decisions] in the absence of
extraordinary circumstances such as where the initial decision was clearly erroneous and would
work a manifest injustice.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817
(1988) (internal quotation marks omitted).
On the merits of Plaintiffs’ attorney-client privilege challenge, Defendants contend that
the privilege has not been waived because they do not affirmatively rely on the defense of good
faith reliance on advice of counsel. In support of the argument, Defendants point out that they
withdrew with prejudice the affirmative defense of good faith reliance on advice of counsel by
the stipulation filed on March 14, 2024, (ECF No. 166), which states that “the Fifth Affirmative
Defense . . . is hereby withdrawn with prejudice.” ECF No 176 at 4. They further asserted in
briefing that, despite their ongoing assertion of the Fourth Affirmative Defense, their intent has
not been affirmatively to rely on advice of counsel but rather merely to deny a willful violation
pursuant to 29 U.S.C. § 255(a).7 Id. Nevertheless, the Fourth Affirmative Defense was not
withdrawn. However, at the September 10, 2024, hearing, Defendants pivoted; orally through
counsel, they advised the Court on the record that the Fourth Affirmative Defense is surplusage
because willfulness is Plaintiffs’ burden to prove pursuant to § 255(a) and no affirmative defense
is required to deny it. That leaves only Defendants’ denial (see ECF No. 107 ¶ 56) of Plaintiff’s
allegation that Defendants’ FLSA violation was willful. Defendants further orally represented
that the Fourth Affirmative Defense may be deemed to be withdrawn. With both the Fourth and

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Pursuant to 29 U.S.C. § 255(a), an employee must show that the employer’s FLSA violation was willful in order to
extend the statute of limitations from two years to three years.

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Fifth Affirmative Defenses now withdrawn, Defendants stated on the record that they do not rely
on and will not rely on the defense of good faith reliance on advice of counsel, as well as that,
based on this express waiver, they are estopped from ever doing so.
As to willfulness, Defendants persist in their denial. Based on this ongoing denial,
Defendants acknowledge that matters covered by the privilege are relevant. In that regard,
Defendants contend that the privilege is designed to shield attorney-client communications from
discovery despite their potential relevance. Thus, a litigant may rely on the privilege’s protection
of relevant communications as long as it is not affirmatively wielded “as both a shield and a
sword.” United States v. Desir, 273 F.3d 39, 45 (1st Cir. 2001) (internal quotation marks
omitted).
Notwithstanding this shift of position by Defendants, Plaintiffs declined to withdraw their
motions, which they concede now rest only on Defendants’ ongoing denial that their conduct
amounts to a willful FLSA violation. Plaintiffs acknowledge that willfulness is an allegation in
their Third Amended Complaint (ECF No. 105 ¶ 56) that is their burden to prove pursuant to §
255(a), so that Defendants are right that they do not need an affirmative defense to continue to
deny that any FSLA violation was willful.
I.

Background
As relevant to the pending motions, in 2018, Defendants presented two Fed. R. Civ. P.

30(b)(6) witnesses – both non-lawyers – to testify about Defendants’ employee classification
process, including with respect to the work performed by the Buyers. One was a Senior
Compensation Specialist, who works in the human relations department (“HR”), and the other
was a Compensation Director, who works in the compensation area. ECF Nos. 173-3, 182-2.

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The Compensation Specialist testified that training based on legal advice from the Legal
Department was provided to employees in the HR/compensation department(s) advising them on
how to perform the job classification review/analysis. ECF No. 173-3. Such a job classification
review/analysis is done whenever there is a new or a changed position, as well as for a project or
on request of the Legal Department. Id. at 11, 15, 18-19. To perform this review/analysis, the
non-lawyer HR/compensation employee gathers information from managers (including the roles,
responsibilities and duties the person in the position will perform or is performing) and analyzes
the information based on FLSA regulations. Once that process is complete, the final
determination for classifying positions as exempt or nonexempt is made by the Legal
Department. Defendants’ 2023/2024 response to Interrogatory No. 8 restates this aspect of the
Compensation Specialist’s 2018 Fed. R. Civ. P. 30(b)(6) testimony. The Compensation
Specialist also testified that she could not recall ever performing such a review/analysis of the
Buyer position. McKnight, 2019 WL 452741 at *2 n.4.
As to the last step – the communications requesting legal advice8 presented to the Legal
Department and the Legal Department’s determination – Defendants have asserted the attorneyclient privilege. In addition, Defendants have also asserted the attorney-client privilege to
protect from production certain documents, which included the trainings provided by the Legal
Department for the HR/compensation specialists. Those privilege assertions were sustained by
the Court following the 2019 in camera review. McKnight, 2019 WL 452741, at *2-3.
Importantly, as the Court noted in the 2019 decision, none of the documents presented for in
camera review specifically addressed the classification of the Buyer position. Id. at *3.

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At the hearing, Defendants acknowledged that factual information included in this request for legal advice is not
privileged.

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Until March 2024, Defendants relied on the Fifth Affirmative Defense, which they
acknowledge was based at least in part on good faith reliance on advice of counsel. In response
to Plaintiffs’ assertion that this Defense waived the attorney-client privilege, ECF No. 173 at 5
n.1, preferring to protect their attorney-client communications, on March 14, 2024, Defendants
withdrew the Fifth Affirmative Defense with prejudice; they argued that this eliminated the
defense of good faith reliance on advice of counsel. They did not withdraw the Fourth
Affirmative Defense until the hearing on this motion, when they stated on the record through
counsel that the Fourth Affirmative Defense is surplusage, in that their denial of willfulness is
enough, and can also be deemed to be withdrawn.
II.

Motion for Reconsideration – Standard of Review and Analysis
“[M]otions for reconsideration are appropriate only in a limited number of circumstances:

if the moving party presents newly discovered evidence, if there has been an intervening change
in the law, or if the movant can demonstrate that the original decision was based on a manifest
error of law or was clearly unjust.” Allstate Ins. Co. v. Fougere, 79 F.4th 172, 197 (1st Cir.
2023) (alteration in original). “[T]he granting of a motion for reconsideration is an extraordinary
remedy which should be used sparingly.” Bowling v. Hasbro, Inc., C.A. No. 05-229S, 2008 WL
169693, at *1 (D.R.I. Jan. 16, 2008) (internal quotation marks omitted). “Unless the court has
misapprehended some material fact or point of law, such a motion is normally not a promising
vehicle for revisiting a party’s case.” Silva v. Farrell, C.A. No. 18-650JJM, 2019 WL 2501887,
at *1 (D.R.I. Jan. 15, 2019) (internal quotation marks omitted), adopted, 2019 WL 2500668
(D.R.I. Jan. 30, 2019).
In particular, a motion for reconsideration does not “provide a vehicle for a party to undo
its own procedural failures, and it certainly does not allow a party to introduce new evidence or

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advance arguments that could and should have been presented to the district court prior to the
judgment.” Fábrica de Muebles J.J. Álvarez, Inc. v. Inversiones Mendoza, Inc., 682 F.3d 26, 31
(1st Cir. 2012) (internal quotation marks omitted); see Galanis v. Szulik, 863 F. Supp. 2d 123,
124 (D. Mass. 2012) (reconsideration motions “are not vehicles for pressing arguments which
could have been asserted earlier”), appeal dismissed, No.12-1763 (1st Cir. July 11, 2012). Nor
does Fed. R. Civ. P. 59 afford an end-run around these principles. Villanueva-Mendez v. Nieves
Vazquez, 360 F. Supp. 2d 320, 323-24 (D.P.R. 2005), aff’d, 440 F.3d 11 (1st Cir. 2006).
Likewise, Fed. R. Civ. P. 60(b), which permits motions for relief after final judgment, does not
provide an appropriate vehicle for raising an interlocutory argument that should have been made
years before. See Fed. R. Civ. P. 60(b); Lobster 207, LLC v. Pettegrow, 1:19-cv-00552-LEW,
2022 WL 3106212, at *2 (D. Me. Aug. 4, 2022) (well settled that Rule 60(b) applies only to final
judgments). At bottom, “it is settled beyond hope of contradiction that, at least in the absence of
exceptional circumstances, a party may not advance new arguments in a motion for
reconsideration when such arguments could and should have been advanced at an earlier stage of
the litigation.” Caribbean Mgmt. Grp., Inc. v. Erikon LLC, 966 F.3d 35, 45 (1st Cir. 2020); see
United States v. Valenzuela, Criminal No. 11-cr-084-04-JL, 2015 WL 8483291, at *2-3 (D.N.H.
Dec. 9, 2015) (motion for reconsideration procedurally barred because party raised argument not
previously presented to the court that could have been presented in earlier proceeding), aff’d on
other grounds, 849 F.3d 477 (1st Cir. 2017); Cavounis v. United States, 14-CV-4992 (VEC), 11CR-297 (VEC), 2016 WL 715768, at *2 (S.D.N.Y. Feb. 19, 2016) (same).
In pressing their motions for reconsideration, Plaintiffs do not rely on newly discovered
facts or changes in law, nor do they argue that the 2019 decision was tainted by any clear or
manifest error of law. Rather, their sole basis for a “do-over” to make a new argument that could

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have been presented five years ago is to prevent fundamental unfairness and to avoid manifest
injustice. ECF No. 182 at 2. Accordingly, the Court next considers whether there are
exceptional circumstances that justify reconsideration.
III.

Attorney-Client Privilege – Applicable Law and Analysis
In the analysis that follows, the Court examines the merits of Plaintiffs’ attorney-client

privilege waiver argument in light of applicable law to determine whether the extraordinary
remedy of reconsideration to avert fundamental unfairness and to avoid manifest injustice is
justified. ECF No. 182 at 2. The Court also considers Plaintiffs’ argument mindful that their
motions also seek to compel discovery.
As developed in federal common law,9 the attorney-client privilege protects confidential
communications between attorney and client and is the oldest of the common law privileges; its
purpose is to foster full and frank communication between lawyers and their clients. Upjohn Co.
v. United States, 449 U.S. 383, 389 (1981). However, when the defense of reliance on the advice
of counsel is raised, the factual circumstances may establish that “the pleader puts the nature of
its lawyer’s advice squarely in issue, and, thus, communications embodying the subject matter of
the advice typically lose protection.” In re Keeper of Records (Grand Jury Subpoena Addressed
to XYZ Corp.), 348 F.3d 16, 24 (1st Cir. 2003). Further, an implied waiver “may occur
whenever [a] party takes a position that makes it unfair to protect attorney-client
communications, such as when a client testifies about portions of such communications or [a]
client relies on [an] attorney’s advice as [an] element of [a] claim or defense.” Desir, 273 F.3d at
45 (internal quotation marks omitted). On the other hand, if a defendant simply denies an

9

At the time of the 2019 decision, the Court considered both federal and state privilege law. McKnight, 2019 WL
452741, at *2 n.1. Because the pending motions pertain only to Plaintiffs’ FLSA claims, on which the Court has
relied, see n.1 supra, only the federal common law of privilege is being considered.

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allegation of bad-faith intent, rather than affirmatively offering reliance on legal advice to rebut
the allegation of bad-faith intent, the attorney-client privilege should be sustained. Diamond
Staffing Sols., Inc. v. Diamond Staffing, Inc., 05-40046-FDS, 2005 WL 8176474, at *3 (D. Mass.
July 8, 2005).
As an example of an implied waiver, Plaintiffs rely on United States ex rel. Berkley, 2024
WL 3201393, at *1-2. Berkley is a False Claims Act case in which the defendants asserted the
defense of lack of scienter. Factually, they supported this defense with their good faith belief in
the lawfulness of their conduct in applying for loans because their attorneys not only provided
advice, but also participated in the application process. Id. at *2. Therefore, Berkley is grounded
in these specific factual circumstances based on which the Court found that it would be unfair to
the plaintiff and the trier of fact to allow these defendants to use “the attorney-client privilege as
both a sword and a shield.” Id. (internal quotation marks omitted).
When applying these principles in the FLSA context, courts proceed with caution to
avoid discouraging employers from obtaining legal advice, which would “run contrary to the
very purpose of the attorney-client privilege.” Aboudara v. City of Santa Rosa, Case No. 17-cv01661-HSG (JSC), 2018 WL 748968, at *1 (N.D. Cal. Jan. 22, 2018); see Doe v. Lahey Health
Sys., Inc., No. 19-cv-11014-PBS, 2020 WL 13561720, at *4 (D. Mass. Aug. 12, 2020) (despite
receipt of attorney advice, attorney-client privilege is waived only if advice is asserted as
defense). For example, in Scott v. Chipotle Mexican Grill, Inc., 67 F. Supp. 3d 607, 614-618
(S.D.N.Y. 2014),10 the court carefully examined the facts and circumstances and found that the

10

The Court notes that, until the Fourth Affirmative Defense was withdrawn, application of Scott would likely have
led to the granting of Plaintiffs’ motions. That is, as in Scott, Defendants were asserting an affirmative defense that
tracked § 260 and the facts established that the FLSA determinations were made by counsel so that the defense
arguably encompassed reliance on advice of counsel. The problem for Plaintiffs is that the Fourth Affirmative
Defense is now gone.

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privilege was impliedly waived based on the express invocation of the affirmative defenses of
good faith under 29 U.S.C. §§ 259 or 260, coupled with facts sufficient to show that those
defenses rested on advice of counsel. On the other hand, when the employer simply denies an
allegation of willfulness pursuant to 29 U.S.C. § 255(a), courts find that such a denial does not
put privileged communications “at issue” and does not constitute an implied waiver even though
the privilege shields relevant legal advice. See, e.g., In re Schlumberger Tech. Corp., 818 F.
App’x 304, 306-07 (5th Cir. 2020) (per curiam) (pleading that denies that violations were willful
and asserts good faith reliance “on applicable law,” but not reliance on advice of counsel, is not
enough to waive attorney-client privilege;); Roy v. FedEx Ground Package Sys. Inc., Case No.
3:17-cv-30116-KAR, 2023 WL 7116755, at *5 (D. Mass. Oct. 27, 2023) (denial of willfulness
and assertion of defense of lack of knowledge not enough for privilege waiver)11; Blake v.
Batmasian, Case No. 15-cv-81222 Marra/Matthewman, 2017 WL 10059251, at *15 (S.D. Fla.
Oct. 5, 2017) (mere denial of willfulness does not amount to issue injection that would impliedly
waive attorney-client privilege), adopted, 2018 WL 3829803 (S.D. Fla. Aug. 9, 2018). Thus, the
attorney-client privilege is not deemed to be waived just because legal advice was obtained and
might be relevant to a disputed issue (willfulness) or otherwise helpful to opponents in proving
an element of their case – that is the very purpose of the privilege: to shield attorney-client
communications from discovery despite their relevance. See generally Schlumberger Tech.
Corp., 818 F. App’x at 306-08 (asserting claim to which privileged material is merely relevant

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Plaintiffs argue that this Court should ignore Roy because the privilege was sustained based on finding that the
privileged documents were not relevant. I disagree. The gravamen of the holding is that the employer’s denial of
willfulness and assertion of the defense of lack of knowledge without more does not waive the attorney-client
privilege. Roy, 2023 WL 7116755, at *5. Irrelevancy was advanced as an alternative justification for the Roy
holding. Id.

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does not waive privilege); Aboudara, 2018 WL 748968, at *1 (employers should not be forced
either to concede willfulness or waive privilege).
In the facts presented in this case, Defendants deny that any FLSA violation that may be
found was a willful violation of law but have eschewed – both expressly and impliedly – both of
their affirmative good faith defenses and their right affirmatively to rely on advice of counsel.
What is left – Defendants’ denial of willfulness coupled with the fact that the final classification
decision is made by the Legal Department – is not enough to put their attorney-client
communications “in issue.” Therefore, the Court finds that Defendants are not using the
attorney-client privilege “as both a shield and sword,” Desir, 273 F.3d at 45, and holds that they
are entitled to protect their privileged communications from discovery. In light of this holding,
the Court further finds that neither fundamental unfairness/manifest injustice nor exceptional
circumstances12 is caused by the Court’s decision sustaining Defendants’ assertion of the
attorney-client privilege.
A loose end: the Court has separately examined Plaintiffs’ contention that appears only in
the second iteration of the motions – that Defendants’ more recent response to Interrogatory No.
8 is new and waives the privilege. Having reviewed it, I find that, while this Answer was
provided in 2023/2024, the information in the Answer is not new. Thus, it simply reiterates what
was already in the factual record presented to the Court in 2019 – that the final classification
decision was made by the Legal Department based on information gathered by HR/compensation

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While not mentioned by the parties, the Court also finds pertinent to whether there is fundamental unfairness or
manifest injustice the reality that, in 2019, the Court reviewed in camera the documents that Plaintiffs now seek
again. Based on that review, the Court noted in the 2019 decision not only that they clearly constitute the privileged
communication of legal advice, but also that they contain “no reference at all to the classification of any Honeywell
job in the procurement area.” McKnight, 2019 WL 452741, at *3. Thus, the Court’s 2019 in camera review
effectively ruled out the possibility that Defendants’ privilege assertion was covering up a document amounting to
the proverbial “smoking gun.”

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specialists. Further, as Defendants point out, the failure to object based on the attorney-client
privilege did not waive the privilege because this Answer responded to an Interrogatory that did
not ask for disclosure of attorney-client communications; further the Answer clearly adverts to
the facts developed in 2018, when the privilege was plainly invoked. Thus, the Court finds that
Interrogatory Answer No. 8 does not amount to new information that would justify
reconsideration nor does it waive the attorney-client privilege.
Based on the foregoing, the Court holds Plaintiffs’ attorney-client privilege waiver
argument “could easily have been made [five years ago] and [Plaintiffs have] made no showing
of exceptional circumstances.” Ward v. AlphaCore Pharma, LLC, 89 F.4th 203, 211 (1st Cir.
2023). Thus, Plaintiffs have failed to overcome the procedural bar to reconsideration. The Court
further finds that this determination does not result in injustice or unfairness either to Plaintiffs or
to the trier of fact because Defendants’ attorney-client privilege has not been put “in issue” and is
not waived. The Court thus sustains Defendants’ objections based on the attorney-client
privilege and denies Plaintiffs’ motion to the extent that it seeks to compel production of
privileged information.
IV.

Conclusion
Affording full consideration to Plaintiffs’ arguments, the Court finds that Plaintiffs have

failed either to meet the high bar for reconsideration or to overcome Defendants’ assertion of the
attorney-client privilege. Accordingly, their motions for reconsideration of the 2019 decision
and to compel (ECF Nos. 173, 178) are denied.
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
October 24, 2024

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