FLSA Cases Raise Interesting Privilege Issues: Part II

January 18, 2023

Last week’s Privilege Point described a case predictably holding that an FLSA defendant could not present defensive evidence at trial of the advice it received from its lawyer about plaintiff employee’s classifications after asserting privilege protection for such advice during discovery.

Three days later, the court in Walters v. Professional Labor Group, LLC, addressed a fascinating issue triggered when defendant’s Rule 30(b)(6) witness “appeared to assert an advice of counsel defense” based on advice he had received from the defendant’s lawyer. No. 1:21-cv-02831-JRS-MJD, 2022 U.S. Dist. LEXIS 197345, at *1 (S.D. Ind. Oct. 31, 2022). As it turned out, the witness had received that advice fourteen years earlier — when he was employed by a different company which was then represented by the same lawyer. Understandably labeling the situation a “conundrum,” the court held that: (1) the previous employer owns the privilege protection covering that earlier advice; (2) absent that previous employer’s waiver, the defendant would be prohibited “from offering testimony or other evidence relating to any advice of counsel” its executive received while employed at the previous company that owned the privilege. Id. at *2-3.

This strange case highlights the importance of identifying the attorney-client privilege protection’s ownership, especially in the corporate context.