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Smith v. Ergo Solutions, LLC

United States District Court, District of Columbia

June 20, 2017

TWILA SMITH, et al., Plaintiffs,
ERGO SOLUTIONS, LLC, et al. Defendants.


          JOHN D. BATES United States District Judge

         Plaintiffs Twila Smith and Deirdre Osbourne have filed this action against their former employer, defendant Ergo Solutions, LLC (“Ergo”), and one of Ergo's managing partners, defendant George Brownlee, alleging sexual harassment. They seek equitable relief and damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the District of Columbia Human Rights Act, D.C. Code § 2-1401 et seq. Now before the Court is plaintiffs' motion to compel discovery of a report written pursuant to Ergo's internal investigation[1] of sexual harassment claims brought against defendant Brownlee by two other Ergo employees. See Pls.' Mot. to Compel [ECF No. 73]. Brownlee and Ergo assert that the report is protected by the attorney-client privilege. However, for the reasons set forth below, the Court finds that Brownlee waived any attorney-client privilege through his deposition testimony. The Court will, therefore, grant the motion to compel.[2]


         Smith and Osbourne allege that “Ergo has long subjected [them] to an abusive, offensive, humiliating and hostile environment as a result of pervasive sexual misbehavior.” Third Am. Compl. [ECF No. 52] ¶ 14. They claim that “[t]he Company created a corporate culture where sexual abuse was tolerated and the objectification of women was promoted.” Id. Plaintiffs specifically allege that Brownlee, one of Ergo's managing partners, engaged in egregious sexual misconduct towards plaintiffs, including sending them explicit videos and text messages, see, e.g., id. ¶¶ 18, 44, 56, 63, 66, propositioning plaintiffs for sex, id. ¶¶ 18, 25, 34, 35, 44, forcing unwanted kissing and touching onto plaintiffs, id. ¶¶ 36, 66, and “expos[ing] his genitals and masturbat[ing]” in front of Smith, id. ¶ 37.

         In 2009, Ergo received complaints from two other female employees accusing Brownlee of sexual harassment and alleging claims similar to those alleged in this suit. In response, Ergo retained attorney Donald Hartman to conduct an investigation of the company and its management. As part of his investigation, Hartman created a written report of his findings and recommendations. Whether this report is discoverable is now at issue.

         Brownlee mentioned this report in his deposition on September 27, 2016. See Brownlee Dep., Ex. E to Mot. to Compel [ECF No. 77], Tr. 28:5-30:20, 34:7-10. Jerry Warren, the former Human Resources Director for Ergo, also mentioned it in his deposition on September 28, 2016. See Warren Dep., Ex. A to Mot. to Compel [ECF No. 73-1], Tr. 41:21-47:2. During Brownlee's deposition, he specifically discussed the report's post-investigation recommendations, including that he stay away from the building for six months, pay a $10, 000 fine, and see a therapist. See Brownlee Dep., Tr. 28:5-30:20, 34:7-10.

         Defendants Ergo and Brownlee claim attorney-client privilege while plaintiffs assert that either the document is not privileged because it contains business advice rather than legal advice or, alternatively, that the privilege was waived by Warren or Brownlee during their respective depositions. After a hearing on February 13, 2017, this Court has reviewed the internal investigation report in camera to determine whether it is privileged and whether it must be produced to plaintiffs.


         Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense[.]” Fed.R.Civ.P. 26(b)(1). If a party objects to the disclosure of certain documents, the requesting party may move to compel disclosure of the withheld material. Fed. R .Civ. P. 37(a). The moving party “‘bears the initial burden of explaining how the requested information is relevant'” before the burden shifts to the non-moving party to “‘explain why discovery should not be permitted.'” See The Navajo Nation v. Peabody Holding Co., 255 F.R.D. 37, 46 (D.D.C. 2009) (quoting Jewish War Veterans of the United States of America, Inc. v. Gates, 506 F.Supp.2d 30, 42 (D.D.C. 2007)). If the non-moving party is withholding documents on the grounds that they are privileged, that party “bears the burden of proving that the communications are protected.” In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998); see also The Navajo Nation, 225 F.R.D. at 46-47.

         “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests.” Id. However, the attorney-client privilege is “narrowly construed by the D.C. Circuit because of its adverse effects on the full disclosure of truth.” United States v. Philip Morris Inc., 212 F.R.D. 421, 424 (D.D.C. 2002). Therefore, “[a] blanket assertion of the privilege will not suffice. Rather, ‘[t]he proponent must conclusively prove each element of the privilege.'” In re Lindsey, 158 F.3d at 1270 (second alteration in original) (quoting SEC v. Gulf & W. Indus., Inc., 518 F.Supp. 675, 682 (D.D.C. 1981)).

         Not all communication between a client and his or her lawyer is privileged; the client must be seeking and receiving legal advice rather than solely business advice. Compare id. at 1267 (“The attorney-client privilege protects confidential communications made between clients and their attorneys when the communications are for the purpose of securing legal advice or services.” (emphasis added)) with Neuder v. Battelle Pac. Nw. Nat. Lab., 194 F.R.D. 289, 292 (D.D.C. 2000) (“[C]ommunications by a corporation with its attorney, who is at the time acting solely in his capacity as a business advisor, would not be privileged” (emphasis added) (internal quotation marks omitted)). Although corporate investigations conducted by outside counsel often combine legal and business advice, the D.C. Circuit recognizes that “[s]o long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney-client privilege applies, even if there were also other purposes for the investigation[.]” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014). In addition, “[c]ommunications between a [corporate] client and its outside counsel are presumed to be made for the purpose of obtaining legal advice.” United States v. ChevronTexaco Corp., 241 F.Supp.2d 1065, 1073 (N.D. Cal. 2002) (citing United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996)); see also Boca Investerings P'ship v. United States, 31 F.Supp.2d 9, 12 (D.D.C. 1998) (noting that “[b]ecause an in-house lawyer often has other functions in addition to providing legal advice, the lawyer's role on a particular occasion will not be self-evident as it usually is in the case of outside counsel”).

         Because not all communication between a person and a lawyer is privileged, the attorney-client “privilege applies only if the person to whom the communication was made is ‘a member of the bar of a court' who ‘in connection with th[e] communication is acting as a lawyer' and the communication was made ‘for the purpose of securing primarily'” legal advice. In re Lindsey, 158 F.3d at 1270 (alteration in original) (quoting In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984)). Moreover, the privilege only applies if it “has been (a) claimed and (b) not waived by the client.” In re Sealed Case, 737 F.2d at 99.

         To safeguard the attorney-client privilege and, therefore, keep the privilege from being waived, the client must “zealously protect the privileged materials, taking all reasonable steps to prevent their disclosure.” SEC v. Lavin, 111 F.3d 921, 929 (D.C. Cir. 1997); see In re Sealed Case, 676 F.2d 793, 818 (D.C. Cir. 1982) (“Any disclosure inconsistent with maintaining the confidential nature of the attorney-client relationship waives the privilege.”). “A document will be considered disclosed by a plaintiff when the defendant has learned the ‘gist' of the document[]'s contents.” The Navajo Nation, 255 F.R.D. at 48 (some internal quotation marks omitted); see also Malco Mfg. Co. v. Elco Corp., 307 F.Supp. 1177, 1179 (E.D. Pa. 1969) (“Once a party has made a disclosure without objection, the only question remaining is whether it constitutes a waiver . . . . Since this Court has determined that the disclosure revealed the gist of the contents of a privileged communication, such disclosure therefore constituted a [] waiver of the privilege.”).

         Zealously protecting privileged materials includes ensuring, by timely objection, that privileged information is not inadvertently revealed during deposition testimony. Federal Rule of Civil Procedure 30(c)(2) states that “[a]n objection at the time of the examination . . . to any . . . aspect of the deposition . . . must be noted on the record . . . . An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege.” Fed.R.Civ.P. 30(c)(2) (emphasis added); see also Charles A. Wright & Kenneth W. Graham, 24 Fed. Prac. & Proc. Evid. § 5507 (1st ed. 1986) (“[T]he failure to object can . . . constitute a waiver of the privilege . . . . The privilege objection must be made before the ...

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