Pierce et al v. Wyndham Vacation Resorts, Inc. et al

Filing 81

MEMORANDUM AND ORDER re 27 and 34 . Counsel for the Defendants is ORDERED to contact Ms. Kathy Keeton, Chief Deputy Clerk to the Clerk of Court for the Eastern District of Tennessee, to make arrangements to either physically or e lectronically deliver the sound recordings to the Clerk of Courts office under seal. The recordings SHALL be delivered to the Clerk of Court on or before August 1, 2014. Signed by Magistrate Judge C Clifford Shirley, Jr on 7/11/14. (JBR) Modified to reflect copy mailed to William J Anthony on 7/11/2014 (JBR).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JESSE PIERCE and MICHAEL PIERCE,
on behalf of themselves and all others
similarly situated,
Plaintiff,
v.
WYNDHAM VACATION RESORTS, INC., and
WYNDHAM VACATION OWNERSHIP, INC.,
Defendants.

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No. 3:13-CV-641-PLR-CCS

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02. Now before the Court are Plaintiffs’ Motion to Compel Defendants
to Produce Audio Tape Recordings [Doc. 27] and Defendants’ Motion for Protective Order
[Doc. 34]. These motions are ripe for adjudication, [see Docs. 29, 37], and the parties appeared
before the undersigned on April 15, 2014, to present oral arguments. The Court has considered
the parties’ positions, and for the reasons more fully stated herein, the Court finds it appropriate
to complete an in camera review before ruling upon either of the pending motions.

I.

BACKGROUND
Plaintiffs filed this action on October 23, 2013, alleging violations of the Fair Labor

Standards Act (“FLSA”).

[Doc. 1].

Defendants Wyndham Vacation Resorts, Inc., and

Wyndham Vacation Ownership, Inc., have filed an Answer [Doc. 18], in which they deny any
violation of the FLSA.

Plaintiffs Jesse Pierce and Michael Pierce are Sales Representatives for Defendants in
Sevierville, Tennessee. In October 2013, they retained the law firm of Dickinson Wright PLLC
to represent them to assert FLSA wage and hour claims against Defendants. Plaintiffs’ counsel
was allegedly advised that other current and former Sales Representatives, who worked at
Defendants’ Tennessee properties, were also interested in seeking legal advice about their
potential legal rights for unpaid overtime under the FLSA
Plaintiffs’ counsel reserved a large meeting room at the Governor’s Inn in Sevierville,
Tennessee, and scheduled a meeting with other interested Sales Persons on October 17, 2013. It
is not clear how this event was advertised to the current and former Sales Representatives, but
counsel for the Defendants represented to the Court that forty-four persons attended. Plaintiffs’
counsel placed a sign-in sheet for individuals attending the meeting.

The sign-in sheet was

typed, but at the top of the sheet, someone wrote: “By signing in, you acknowledge that you are
here to seek legal advice concerning your right to overtime pay from Wyndham.”

There has

been no evidence presented to dispute Plaintiffs’ assertion that this acknowledgment was added
prior to the attendees signing in. Individuals in attendance signed-in with their names, e-mail
addresses, and telephone numbers.
In his affidavit [Doc. 30-1], Attorney Martin Holmes, who serves as counsel for the
Plaintiffs, represents that: at the beginning of the program, counsel announced their
understanding that everyone in attendance at the meeting was there seeking legal advice; counsel
further stated that, if anyone in attendance was not seeking legal advice, they should leave; and
finally, counsel stated that, because the attendees were seeking legal advice, they were legally
considered “clients.” Further, Mr. Holmes attests that counsel advised that discussions in the
meeting were protected by the attorney-client privilege and that if anyone was present on behalf

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of the Defendants, or there to record the meeting, they should leave. Mr. Holmes represents that
after those announcements no one left the meeting.
Plaintiffs assert that, after these introductory remarks, Plaintiffs’ counsel discussed issues
related to the attendees’ potential overtime claims, including the nature of the law as applied to
the duties they performed, the framework in which legal action would be taken, and the
collective action provisions of the FLSA. Plaintiffs assert that the attendees and counsel engaged
in an interactive dialogue. Plaintiffs represent that, at the meeting or shortly thereafter, forty-two
attendees signed consents to opt-in to the forthcoming lawsuit. Six days after the meeting,
Plaintiffs filed this case.
Unbeknownst to Plaintiffs or their counsel, at least one individual who attended the
October 17, 2013 meeting also recorded portions of the meeting. The individual sent the audio
recordings to Defendants’ then Director of Sales, John Geissberger, via text message. Defendants
maintain that neither Geissberger nor any other managers asked the individual to make the
recordings or to provide them to Geissberger.
On December 3, 2013, Attorney James Mulroy, Defendants’ counsel, advised Plaintiffs’
counsel via email of his receipt of the recordings. Mr. Mulroy represented that the person who
recorded the meeting had filed a consent and was an opt-in plaintiff in this action.

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individual who recorded the meeting has not been further identified to either the Court or the
Plaintiffs. Defendants’ counsel has represented to the Court that he has not listened to the
recording.

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II.

POSITIONS OF THE PARTIES
Plaintiffs maintain that the audio recording of the October 17, 2013 meeting is protected

from disclosure from the attorney-client privilege and should be given to Plaintiffs’ counsel. In
their briefing, the Plaintiffs maintain that the meeting attendees were clients. However, at the
hearing counsel for the Plaintiffs conceded that not everyone at the meeting was a client because
they did not all sign a retainer. Plaintiffs argue that one or two clients cannot waive the attorneyclient privilege on behalf of all of the attendees unless authorized to do so. Plaintiffs maintain
that no such authorization has been given, and therefore, the privilege has not been waived.
The Defendants move the Court to conduct an in camera review of the audio recordings
to determine if the content is protected by the attorney-client privilege. Defendants suggest that
if the Court believes that the recording contains potentially privileged information, it should
permit discovery on this issue. Defendants maintain that, regardless of whether the recording is
privileged, the Court should issue an Order protecting disclosure of the identity of the individual
who recorded the meeting. At the hearing, counsel for the Defendants argued that disclosure
would lead to that individual being bullied. Defendants also maintained that the recording was
not protected by the attorney-client privilege because the privilege extends to communications by
a client, not the attorney.

III.

ANALYSIS
“Questions of privilege are to be determined by federal common law in federal question

cases.” Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998) (citing Fed. R. Civ. P. 501).
Pursuant to the federal common law of the Sixth Circuit, “[t]he elements of the attorneyclient privilege are as follows: (1) Where legal advice of any kind is sought (2) from a

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professional legal adviser in his capacity as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected
(7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.” Id.
(citing Fausek v. White, 965 F.2d 126, 129 (6th Cir. 1992)).
The parties concede this Court has jurisdiction over this case based upon a federal
question pursuant to 28 U.S.C. § 1331. [Doc. 1 at ¶ 6; Doc. 18 at ¶ 6]. Therefore, the Court
applies the form of the attorney-client privilege articulated by the Court of Appeals for the Sixth
Circuit, as stated above. The Court has given great thought to the application of this standard,
but the Court has significant reservations about the application of at least three of the elements to
the instant case.

Specifically, the briefing before the Court yields little to help in the

determination of whether the communications at issue were made in confidence, by the client,
and whether the protection was waived. This deficiency is due mainly to the position in which
counsel for both sides find themselves – i.e. defense counsel has not heard the recordings and
Plaintiffs’ counsel cannot divulge too much about the meeting without risking a waiver of any
privilege that may exist.
The Court has concluded, after trying to fashion an opinion and as a necessity to a proper
ruling, that it would be well-served to listen to the recordings in camera. This in camera review
will almost certainly aid the Court in determining whether the communications that were
recorded were made by the client and whether they were made in confidence. The review may
or may not aid in a determination of whether the privilege was waived, but because the privilege
cannot exist where even one of the essential elements is missing, the Court’s in camera review
may alleviate the need for the Court to determine whether there was a waiver. Conversely, the in

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camera review may prevent the Court from unnecessarily deciding an issue of waiver that may
have long-lasting effects within this District and, potentially, this Circuit.

IV.

CONCLUSION
For the reasons more fully stated herein, counsel for the Defendants is ORDERED to

contact Ms. Kathy Keeton, Chief Deputy Clerk to the Clerk of Court for the Eastern District of
Tennessee, to make arrangements to either physically or electronically deliver the sound
recordings to the Clerk of Court’s office under seal. The recordings SHALL be delivered to the
Clerk of Court on or before August 1, 2014.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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