Court Analyzes the Scope of a Waiver in an Employment Context

November 25, 2009

Every lawyer knows that a company relying on “advice of counsel” as a defense impliedly waives the attorney-client privilege. However, the court must then determine the waiver’s scope — focusing both on the horizontal scope (the subject matters involved) and the temporal scope (the time period to which the waiver applies).

In Asberry v. Corinthian Media, Inc., No. 09 Civ. 1013 (CM)(DFE), 2009 U.S. Dist. LEXIS 86493 (S.D.N.Y. Sept. 18, 2009), an employment discrimination plaintiff sought documents from Troutman Sanders — her former employer’s law firm. She pointed to the company’s “defense that the June 2007 termination was made by them in reliance on advice of counsel,” and sought “the entire litigation files of the Troutman law firm concerning her litigation.” Id. at *4 & *3. United States Magistrate Judge Douglas Eaton rejected plaintiff’s argument. He limited the horizontal scope of the waiver “to [the company’s] decision to terminate Plaintiff’s employment” — noting that “there is no need to probe [defendants’] motivation as to any aspect of their litigation conduct.” Id. at *6. As for the temporal scope, Judge Eaton indicated that “I have drawn the line at June 30, 2007, sixteen days after the termination.” Id. at *7. He explained that communications occurring immediately after the termination “may give insight into Defendants’ motivation at the time of the firing” — and that the sixteen‑day post-firing period “is ample to capture any communications that may have occurred soon after the termination but before the parties entered into a rigid litigation mode.” Id.

Companies justifying their termination of an employee or some other action by pointing to the advice of their lawyers must analyze both the horizontal and temporal scope of the waiver that they will trigger.