Southern District of New York Applies A Broad “At Issue” Waiver Doctrine

March 18, 2020

Last week’s Privilege Point described an Alabama Supreme Court decision applying a narrow “at issue” waiver approach. The “at issue” doctrine can trigger a privilege waiver even if the privilege’s owner does not disclose, rely on, or even mention privileged communications.

But some courts apply the doctrine very broadly. In Brown v. Barnes & Noble, Inc., No. 1:16-cv-07333 (RA) (KHP), 2019 U.S. Dist. LEXIS 22065, at *28 (S.D.N.Y. Dec. 23, 2019), the Southern District of New York (Magistrate Judge Parker) found that FLSA defendant Barnes & Noble had “impliedly waived [privilege and work product] protection insofar as it has asserted a good faith defense” to its job classifications. The court noted that other Southern District courts have found a waiver “in cases where the claim involves the proper classification of a position under the FLSA” – because “a plaintiff is entitled to explore whether the defendant acted contrary to legal advice when classifying a position as exempt from overtime or minimum wage requirements.” Id. at *29. Most troubling, the court emphasized that “[a] waiver has been found even when the defendant asserted that it was not relying on advice of counsel.” Id.

There is not much that corporations’ employees and lawyers can do in jurisdictions taking such a broad “at issue” waiver approach — other than following the always-wise practice of being careful what they write.