The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge
Plaintiff Providence Aiossa filed a Motion to Compel ("Motion") on July 8, 2011, seeking to compel defendants Bank of America, John Frazza, and Susan Cole to produce documents that defendants have withheld pursuant to attorney-client privilege and/or the work product doctrine. In the alternative, she requests that the Court review the challenged documents in camera. Defendants filed an Opposition to the Motion ("Opposition" or "Opp.") on July 8, 2011, countering plaintiff's arguments and offering further information about withheld documents. Plaintiff filed her Reply on the same day. On August 25, 2011, plaintiff filed a Declaration of Tracey L. Brown ("Brown Decl."), arguing that, based on recent deposition testimony, more documents withheld as privileged should be produced. Defendants filed an Opposition to the Brown Declaration ("Opp. to Brown Decl.") on August 3, 2011.
On August 8, 2011, the Court directed defendants to produce certain challenged documents for in camera review. The Court has reviewed the documents, and the matter is now ready for decision. For the reasons below, plaintiff's Motion to Compel is DENIED.
In this diversity action, plaintiff claims defendants unlawfully discriminated against her on the basis of age and retaliated against her for opposing discriminatory practices in violation of the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights Law, Admin. Code of the City of New York §§ 8-101 et seq. She also asserts a claim for breach of contract.
The following allegations are relevant here. Plaintiff had been a Mortgage Loan Officer in Bank of America's Commercial Real Estate department beginning since 1992. (Motion at 2). Her direct manager since 2005 was an African-American man named Keith Cook, whose territory comprised New York City and Long Island. (Id.). In July 2006, defendant Susan Cole was hired as Cook's manager. Plaintiff alleges that Cole and her boss, defendant John Frazza, implemented a plan to break up Cook's territory because of racial animus. (Id.). Thereafter, plaintiff allegedly complained about the discrimination and was retaliated against because of her complaints. (Id. at 6). Specifically, she was subjected to six separate investigations between July 2007 and her termination in August 2008. (Id.). Three of the investigations were undertaken by Corporate Security and three by Advice and Counsel, a department within Human Resources. (Id. at 3-5). Plaintiff asserts that none of the investigations found that she had engaged in any wrongdoing or violated any bank policy. (Id. at 5). However, she was terminated in August 2008 on the basis of "loss of trust and confidence." (Id.).
Plaintiff alleges certain irregularities relating to these investigations. First, she asserts that in a case filed by Cook in the Southern District of New York, Missy George of Advice and Counsel filed a false affidavit asserting that she had never received a complaint regarding Cole's use of a racial epithet against Cook. (See id.; see also id., exh. 7 (George Affidavit); exh. 2 (Denise Lott Deposition Transcript)). Plaintiff further asserts that when she initiated an investigation to look into her claims of age discrimination and retaliation, Lisa White of Advice and Counsel improperly wrote up the complaint, leaving out any reference to the discrimination and retaliation charges. (See id. at 4; see also id., exh. 11 (complaint write-up)). Finally, plaintiff complains that she was fired in violation of the bank's progressive discipline policy. (Id. at 5-6). According to plaintiff, all of this indicates collusion and a conspiracy to terminate her employment. (Id. at 6).
Plaintiff argues that two overarching concerns counsel in favor of requiring defendants to disclose the withheld material. First, the irregularities in the investigation, including the allegedly false affidavit submitted in the Cook case, "mean that all of the decisions relating to Ms. Aiossa's termination should be disclosed." (Id. at 6). Second, the fact that the attorneys upon whom the assertion of privilege is founded are in-house counsel "mandates that a stricter standard be imposed when evaluating the attorney-client privilege." (Id. at 6-7).
More specifically, plaintiff challenges defendants' withholding of the following documents, which are here segregated into groups based on the reasons plaintiff gives for their production:
Group 1: These are documents that relate to the sixth and final investigation of plaintiff. Plaintiff argues that these documents were all created after plaintiff had complained to Advice and Counsel regarding discrimination and retaliation, which occurred one month before the legal department was brought into the investigation.
She argues that defendants are using the attorney-client privilege to shield documents that "go to the heart" of the matter. (Motion at 7-9). She further argues that these documents should be produced pursuant to the crime-fraud exception to attorney-client privilege. (Motion at 9). She asserts that (1) the legal department was consulted only after plaintiff complained to Advice and Counsel, (2) investigators found no wrongdoing, (3) plaintiff was terminated in violation of the progressive discipline policy, (4) a false affidavit was filed in the Cook case, and (5) Advice and Counsel did not record plaintiff's discrimination and retaliation claims. These five facts, plaintiff argues, implicate the crime-fraud exception. (Id. at 9-10).
The specific documents at issue in this group are (1) BANK 00952, 0961-66, 0975, and 0979--redacted or withheld pages from a report by Wendell Fox of Corporate Security regarding the sixth and final investigation into plaintiff, including emails between employees and in-house counsel (Motion at 7; id., Exh. 1, at 2); (2) BANK 0101--note between Advice and Counsel's Diana Rhine and in-house counsel Chad Butler (Id. at 8); and (3) BANK 2690-2903--emails (with attached reports and handwritten notes regarding the Aiossa investigation) among Fraud Operations, Corporate Security, Consumer Real Estate, Advice and Counsel, and legal. (Id.). This group includes BANK 2801-03, which is an email written two days before plaintiff's termination.*fn1 (Id.).
Group 2: These are documents that plaintiff asserts are insufficiently described in defendants' privilege log. The specific documents at issue are (1) BANK 1110-11--documents withheld as non-responsive because they relate to a different investigation (Motion at 10); (2) BANK 2687-89--documents including an email thread with the subject line "investigation." (Id.). Two pages of the thread do not include any lawyers as recipients; two pages list in-house counsel Butler as a recipient (id. at 10-11); (3) BANK 2804-13--documents identified as "misrepresentation letters" with no indication that attorney advice was sought or given*fn2 (Id. at 11); and (4) BANK 2837-3218--documents listed as in-house counsel Butler's file on the Aiossa investigation.
Group 3: In a submission filed on July 25, 2011, plaintiff seeks to
supplement the Motion with another exhibit to challenge defendants'
withholding of more documents. (See Brown Decl. at 2; id., Exh. 3).
Plaintiff asserts that, subsequent to filing the instant Motion,
witness Wendy Leahy, a fraud investigator at Bank of America,
testified in a deposition that she did not request legal advice from
in-house counsel, but did communicate with the legal department when
in-house counsel Butler contacted her about the Aiossa investigation.
(Id. at 2; see also id., Exh. 3 at 2-3 (Leahy Depo. at 27)). Plaintiff
therefore argues that the following documents, which were assertedly
withheld on the basis that they involved Leahy seeking legal advice
from Butler, should ...