United States District Court, D. Delaware
NICHOLAS MCKEE, Individually And On Behalf of All Other Persons Similarly Situated, Plaintiffs,
PETSMART, INC., Defendant
For Nicholas McKee, Individually and On Behalf of All Other Persons Similarly Situated, Plaintiff: Norman M. Monhait, LEAD ATTORNEY, Rosenthal, Monhait & Goddess, P.A., Wilmington, DE; Charles Gershbaum, PRO HAC VICE; David A. Roth, PRO HAC VICE; Fran Rudich, PRO HAC VICE; Jeffrey A. Klafter, PRO HAC VICE; Jessica Zeldin, Rosenthal, Monhait & Goddess, P.A., Wilmington, DE; Marc S. Hepworth, PRO HAC VICE; Matthew A. Parker, PRO HAC VICE; Mike Palitz, PRO HAC VICE; Rachel Aghassi, PRO HAC VICE; Seth R. Lesser, PRO HAC VICE.
For PetSmart Inc., Defendant: Michael Brendan Rush, LEAD ATTORNEY, Potter Anderson & Corroon, LLP, Wilmington, DE; William R. Denny, LEAD ATTORNEY, Potter Anderson & Corroon, LLP, Wilmington, DE; Andrew J. Voss, PRO HAC VICE; Jeffrey A. Timmerman, PRO HAC VICE.
Sherry R. Fallon, United States Magistrate Judge.
Presently before the court in this action brought under the Fair Labor Standards Act (" FLSA" ) is a motion to compel filed by plaintiff Nicholas McKee (" McKee" ) and all other similarly situated current and former employees (" plaintiffs" ) that hinges on whether defendant PetSmart, Inc. (" PetSmart" or " defendant" ) waived the attomey-client privilege by asserting a " good faith" affirmative defense pursuant to 29 U.S.C. § 260. (D.I. 183) For the following reasons, plaintiffs' motion is granted-in-part and denied-in-part.
On September 10, 2012, McKee initiated this action on behalf of himself and other current and former operations managers of PetSmart. Plaintiffs allege that PetSmart misclassified its operations managers as exempt under federal overtime laws in violation of the FLSA, and has failed to pay them overtime compensation. (D.I. 1 at ¶ ¶ 1-2)
On September 17, 2014, plaintiffs deposed Shane Burris, PetSmart's director of compensation, regarding the affirmative good faith defense raised by PetSmart. (D.I. 183, Ex. D at 7:1-5) Burris testified that he is responsible for deciding whether a specific store level position, such as an operations manager, is classified as exempt. ( Id. at 124:5-126:24) During the course of the deposition, PetSmart's counsel repeatedly invoked the attomey-client privilege and instructed Burris not to answer questions as to whether he relied on legal advice in making classification decisions regarding the exempt status of operations managers. ( Id. at 75:3-83:23) Burris testified that he made exemption decisions based on store visits and conversations with various people, including the legal department. ( Id. at 140:4-141:4)
On September 23, 2014, plaintiffs filed the instant motion to compel, alleging that PetSmart invoked the attomey-client privilege " to stifle testimony that was both non-privileged and directly responsive to Defendant's 'good faith' affirmative defense." (D.I. 183 at 1) By way of the motion to compel, plaintiffs request that the court issue an order (1) directing Burris to answer
specific questions and any follow-up questions; (2) granting plaintiffs an opportunity to re-depose Burris; and (3) requiring PetSmart to produce documents it has withheld based on its allegations of privilege. ( Id.) On October 2, 2014, the court held an oral argument to address the motion.
III. LEGAL STANDARD
The attomey-client privilege protects disclosure of communications between a client and his or her attorney related to securing legal advice. See Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 852 (3d Cir. 1994). The privilege applies to communications from an attorney to a client as well as from a client to the attorney. See Upjohn v. United States, 449 U.S. 383, 390, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The burden of demonstrating the applicability of the attomey-client privilege rests on the party asserting the privilege. See Matter of ...