The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Fredrick Scholtisek, commenced this action against his former employer, Eldre Corporation ("Eldre"), alleging that Eldre has violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and the New York Labor Law by willfully making impermissible deductions from the pay of employees who are paid on a salary basis. Plaintiff seeks declaratory relief and money damages, on behalf of himself and all other similarly situated employees. The Court has previously certified this action as a class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure, and directed that notice of plaintiff's claims be sent to all class members. 229 F.R.D. 381 (W.D.N.Y. 2005).
In anticipation of trial, Eldre has filed a motion in limine seeking an order precluding the use of any testimony concerning certain conversations between Kathleen Davis, Eldre's former Human Resources Manager, and Arthur Abelson, who prior to his death was Executive Vice President of Eldre. Abelson made the subject statements in response to Davis' inquiry concerning certain wage matters, on behalf of a particular employee. Because the comments reference Eldre's attorneys, Eldre contends that the conversations are protected by the attorney-client privilege. For the reasons that follow, Eldre's motion is denied.
Davis testified at her deposition that her duties as Human Resources Manager included screening and interviewing job applicants, conducting exit interviews, helping employees obtain benefits, explaining their benefits to them, and generally acting as a liaison between employees and management. Dkt. #154 Ex. G at 20. She was not primarily responsible for handing Eldre's payroll, though she served as a backup for the person who did handle the payroll. Id. at 20, 78.
Davis helped type Eldre's 1999 revised handbook for exempt employees (which contained various information about Eldre's wage and hour policies and practices), but she did not make decisions with respect to the policies set forth in the handbook. Id. at 25, 41.
At one point, Davis testified that on a certain occasion in about the second or third year of her employment at Eldre, she "had an employee get angry because their pay was docked." Id. at 39. She stated that she "went to Mr. Abelson at the time with the employee's complaint, and [she] was told that this handbook had been gone over by the company's attorneys and everything in it was legal." Id.*fn1 It is this conversation to which Eldre objects.
Davis testified that she told Abelson that she "d[id]n't recall seeing a policy like that before for a salaried employee." Dkt. #161 Ex. A at 44. The policy she was referring to was Eldre's policy of docking salaried employees' pay for partial-day absences. Id. at 43, 46. Davis stated that she "wanted to get an answer [from Abelson] to have something to say to this employee to hopefully make them understand that this was company policy and, you know, that was it." Id. at 45.
After plaintiffs' attorney had asked her a few more questions about this topic, Eldre's attorney stated, "I think I just want to put an objection on the record to preserve an argument that any conversations with Mr. Abelson regarding attorneys is [sic] protected by the attorney/client privilege by virtue of Miss Davis' position." Id. at 47. Plaintiffs' attorney responded, "Obviously we'll be litigating that at a later point ... ." Id.
I. Privileged Communications
Defendant contends that Abelson's alleged statements to Davis that Eldre's attorneys had reviewed the company handbook and that "everything in it was legal" are protected by the attorney-client privilege. Plaintiffs contend that Eldre has waive the privilege with respect to those statements, in a number of ways.
Before reaching the issue of waiver, though, there is a threshold question whether any privileged information was transmitted by Abelson to Davis in the first place. I am not convinced that it was.
To invoke the attorney-client privilege, a party must demonstrate that there was (1) a communication between client and counsel, which (2) was intended to be and was in fact kept confidential, and (3) made for the purpose of obtaining or providing legal advice. United States v. Construction Products Research, Inc., 73 F.3d 464, 473 (2d Cir.), cert. denied, 519 U.S. 927 (1996). "It is ... well established that the party invoking a privilege bears the burden of establishing its applicability to the case at hand." In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379, 384 (2d Cir. 2003); see also United States v. International Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997) (holding that party invoking attorney-client privilege bears the burden of establishing "all of its elements"); United States v. Construction Prods. Research, Inc., 73 F.3d 464, 473-74 (2d Cir. 1996) (rejecting attorney-client and work product privilege claims where party ...