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

February 5, 2020

The last three Privilege Points described six 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).

Seventh, the court addressed fired CEO Parneros’s argument that Barnes & Noble waived its privilege protection for communications relating to its press release when announcing Parneros’s firing – because the press release said Parneros’s termination “was taken by the Company’s Board of Directors who were advised by the law firm Paul, Weiss.” Id. at 500. The court rejected Parneros’s argument, noting that “[b]ecause the . . . press release does not disclose the substance of counsel’s advice, but rather only discloses the fact of counsel’s consultation, there was no waiver based on the inclusion of the statement in the press release.” Id. Eighth, the court addressed fired CEO Parneros’s argument that Barnes & Nobel triggered an “at issue” waiver by including in its Answer a contention that Barnes & Noble’s termination decision was “clearly made in good faith.” Id. at 501-02. The court rejected Parneros’s argument – explaining that “the mere use of the term ‘good faith’ in an Answer does not reflect reliance on a ‘good faith’ defense,” and emphasizing that “Barnes & Noble has disclaimed any intention to assert a ‘good faith’ defense.” Id. at 502.

This extensive well-reasoned opinion by such a well-respected judge in such a high-profile case provides favorable holdings and practical guidance for corporations seeking to maximize their investigation-related privilege protection.