Last week’s Privilege Point addressed a case in which defendant Holland & Knight could withhold the names of clients to whom it provided advice allegedly similar to advice plaintiffs claimed was fraudulent. A few weeks later, another court assessed whether plaintiffs suing Jones Day for alleged retaliation against them for seeking parental leave had to identify lawyers with whom they consulted before suing that law firm.
In Savignac v. Jones Day, Title VII plaintiffs had earlier sent Jones Day an email alleging that the law firm engaged in illegal discrimination in denying their parental leave, and boasted that “[w]e have also discussed the matter with other competent attorneys” who agreed with them. Civ. A. No. 19-2443 (RDM), 2022 U.S. Dist. LEXIS 30262, at *3 (D.D.C. Feb. 20, 2022). Jones Day sought the names of those “other competent attorneys,” but plaintiffs claimed work product protection. The court bluntly rejected their work product assertion, noting that under Title VII plaintiffs must “demonstrate a good faith, reasonable belief that the challenged practice violates Title VII.” Id. at *11. Noting that “the good faith requirement requires a subjective inquiry into the plaintiffs’ beliefs and motivations,” the court agreed with Jones Day that “[t]o the extent that Plaintiffs did not consult with ‘other competent attorneys,’ as they claimed, or that those individuals did not believe that Jones Day’s leave policies violated Title VII, that information would tend to make Plaintiffs’ good faith ‘less probable than it would be without the evidence.'” Id. at *11, *13 (citation omitted).
The attorney-client privilege and work product doctrine sometimes protect the identity of lawyers’ clients and clients’ lawyers, but sometimes they do not. Lawyers representing those clients must understand the differences.