Privilege Issues In High-Profile Corporate Sexual Harassment Case: Part III

January 29, 2020

The last two Privilege Points described four favorable analyses from a Southern District of New York decision (Judge Gorenstein) assessing defendant Barnes & Noble’s privilege assertions covering its investigation and later firing of its CEO for sexual harassment. Parneros v. Barnes & Noble, Inc., 332 F.R.D. 482 (S.D.N.Y. 2019).

Fifth, the court addressed fired CEO Parneros’s argument that Barnes & Noble waived its privilege by eliciting at his deposition extensive testimony about a meeting at which Parneros “apologized for his conduct” to the company’s Senior VP, and another meeting attended by Barnes & Noble’s Founder and Chairman. Id. at 489. The court rejected Parneros’s argument – noting that the company had not asserted privilege for either one of the meetings, but rather “taken the position that certain notes taken at the apology meeting as part of the investigation overseen by [General Counsel] Feuer are privileged.” Id. at 496. This meant that the deposition testimony about those non-privileged meetings did not waive any privilege. But the privilege still protected the “notes taken by an attorney or his designee at a non-privileged meeting . . . as long as the notes were taken for the purpose of allowing counsel to give legal advice.” Id. As with other interview notes prepared by General Counsel Feuer, the court did not address work product protection – which would seem to be a more appropriate protection. Sixth, the court addressed fired CEO Parneros’s argument that the privilege did not protect drafts of press releases that were sent to General Counsel Feuer and/or outside counsel at Paul, Weiss. The court rejected Parneros’s argument, pointing to Feuer’s declaration that the company’s Senior VP of Corporate Communications of Public Affairs and VP of Investor Relations sent draft press releases to him and to Paul Weiss “for his ‘review and legal advice’ and were sent to ‘outside counsel concerning the wording of the announcement for their review and legal advice.'” Id. at 498.

The next Privilege Point will describe other favorable language from this significant case.