On March 27, 2015, in the case of Scott v. Chipotle Mexican Grill, Inc., Magistrate Judge Sarah Netburn of the United States District Court for the Southern District of New York granted and denied in part Plaintiffs’ motion to compel production of particular documents in Defendant’s revised privilege log. The motion was filed on February 24, 2015 by Fitapelli & Schaffer LLP and Outten Golden, LLP on behalf of Plaintiffs, in response to Defendant’s privilege log, provided in discovery, which claimed Attorney-Client privilege over 30 documents requested for production by Plaintiffs.
The Attorney-Client Privilege applies to (1) a communication between a client and counsel that (2) was intended to be and was kept confidential and (3) was made for the purpose of obtaining or providing legal counsel. The purpose of this privilege is to encourage full and frank communication between an attorney and their clients. However, since this privilege stands in derogation of the public’s right to “every man’s evidence”, it is very narrowly construed.
The court in this case reviewed Defendant’s amended privilege log and supplemented deposition transcript excerpts in concluding whether or not the documents on Defendants’ privilege log were truly privileged. The first document the court addressed was Cinda Daggett’s Consultative Report. This was a report written on November 8, 2011 by consultant Cinda Daggett to John Shunk, an attorney at Messner Reeves LLC, who is counsel to Defendant. The report examined the activities of four employees holding Chipotle’s apprentice position, the classification which is the subject of the underlying action, and consolidated employee interviews and delivered a factual analysis. Plaintiffs argued that, because Daggett was a human resources consultant, her report was not sent to assess a legal issue and was therefore not privileged. The court agreed, finding that Daggett was not engaged for anything more than factual research and to assist in making a business decision. The fact that the information was provided in memorandum format did not make it a privileged communication. Further, the report was delivered two days after Chipotle received legal advice from two firms, proving that the report was not created to assess a legal issue. Defendant also failed to show that Daggett assisted Messner Reeves LLC in communication with Defendant, or provided advice outside the firm’s general expertise which was essential to their ability to provide legal advice.
The court next assessed emails between Moore and Dominguez, employees for Defendant, and Parcheta, an attorney at M.S.E.C., which is a non-profit that provides a variety of services to employers, including HR advice and legal services. Here, Defendant argued that Parcheta was acting as their attorney and was providing legal advice, while Plaintiffs argued that Parcheta was providing business advice. The court held for Defendant, finding that Parcheta wrote his communications as a lawyer, and that his communications discussed and analyzed the law beyond the bare recitation of regulation.
The court next looked at whether certain emails between corporate employees were privileged. Plaintiffs argued that any privilege was waived since these documents were knowingly exposed to a third party. However, the court acknowledged that the third-party waiver rule functions different in a corporate context. Specifically, the dissemination of privileged information within a corporation, when pertaining to legal advice received from counsel, does not vitiate the privilege. The privilege can still be waived, however, by disclosure of the communications to employees of the corporation who are not in a position to act or rely on the legal advice in the communication. The court looked at each email individually and found that the emails which contained or referred to legal advice were privileged, while the emails that did not reflect legal advice must be produced, albeit with some redactions. The court glossed over Plaintiffs previously un-renewed objections to numerous privilege log entries on the ground that they lacked sufficient detail on which they can evaluate the underlying claims for privilege. Since Defendants previously revised their private log entries, and Plaintiffs did not renew their objections, the issue was basically moot. However, the court held had any objections been made, the revised logs were sufficiently detailed to overcome them.
The employment lawyers at Fitapelli & Schaffer are looking to represent all apprentices and/or assistant managers who work or have worked for Chipotle Mexican Grill, Inc. at Chipotle Mexican Grill Restaurants nationwide. Please contact us at (212) 300-0375 to schedule a free consultation to further discuss if you are qualified to opt-in. For more information, please visit our website at www.fslawfirm.com.