Can the Privilege Ever Protect Communications with a Hostile Company Employee?

February 2, 2011

The attorney-client privilege can protect communications between a company’s lawyer and company employees providing facts that the lawyer needs to give legal advice to the company. But what happens if the lawyer communicates with hostile employees, who later become members of a class suing the company?

In Winans v. Starbucks Corp., No. 08 Civ. 3734 (LTS) (JCF), 2010 U.S. Dist. LEXIS 134136 (S.D.N.Y. Dec. 15, 2010), Magistrate Judge Francis addressed communications between Starbucks’ lawyers and Assistant Store Managers who claim that they should have shared in each store’s tip pool. In opposing certification of a store manager class, Starbucks submitted declarations from several managers – and then instructed the managers not to answer any questions during their depositions about their conversations with Starbucks’ lawyers. Judge Francis upheld the instruction. Noting that Starbucks’ lawyers could communicate ex parte with the managers (before class certification), Judge Francis emphasized that the privilege belonged to Starbucks and not the managers. Therefore, the store managers “are forever precluded from revealing the content of their communications with counsel absent a waiver by Starbucks.” Id. at *9.

A corporation’s ownership of the privilege normally means that no employee can waive that privilege, even if the employee later sues the company.