The opinion of the court was delivered by: Siragusa, J.
Now before the Court is Plaintiff's application for this Court to reconsider a pretrial ruling by United States Magistrate Judge Jonathan W. Feldman. Decision and Order, ECF No. 62. Julie Angelone ("Plaintiff") argues that Judge Feldman erred by refusing to reconsider his earlier decision, ECF No. 58, denying Plaintiff's motion to compel discovery of certain documents claimed as privileged by Xerox Corporation ("Defendant"). As discussed below, the Court determines that Plaintiff has not shown that Judge Feldman's Decision and Order was clearly erroneous or contrary to law.
Plaintiff seeks an order to compel Defendant to produce approximately 100 documents from Defendant's privilege log. Judge Feldman ordered the production of the first six documents in the log, but reserved production on the remaining documents. Judge Feldman cautioned Defendant that, should any of these post-PVIR documents be referred to or relied on by Xerox at trial in arguing to the Court or the jury that it exercised reasonable care to prevent or correct harassing or discriminatory behavior or that Angelone failed to take advantage of preventive or corrective opportunities provided by Xerox, then Xerox's invocation of work product or attorney-client protections is invalid and the documents must be immediately produced. Decision and Order, at 8, Sept. 26, 2011, ECF No. 48.
The Faragher/Ellerth defense protects an employer from liability for discrimination or sexual harassment when no tangible employment action is taken against an employee. See Zakrzewska v. New School, 574 F.3d 24, 26 (2d Cir. 2009). The defense requires that the employer show it exercised reasonable care to prevent and correct promptly any discriminatory or sexually harassing behavior and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 765 (1998). After in camera review, Judge Feldman found that Defendant was not relying on the documents at issue for its affirmative defense.
However, Plaintiff argues that by asserting the Faragher/Ellerth defense, Defendant waived both attorney-client privilege and work product protections for all documents in its privilege log. Plaintiff also argues that by failing to timely produce the log, Defendant waived all claims to attorney-client privilege or work product protections. In response, Defendant contends that Plaintiff misinterprets the waiver requirements of the Faragher/Ellerth defense and that once the documents are prepared in anticipation of litigation, such as for Plaintiff's Equal Employment Opportunity Commission ("EEOC") claims, those documents are privileged. In addition, Defendant argues that there were extenuating circumstances for the delayed filing of the privilege log and that there was no flagrant violation of discovery rules.
Review of Magistrate Judge's Decision and Order
Plaintiff's Notice of Motion, Dec. 5, 2011, ECF No. 63, seeks the following relief: An Order pursuant to pursuant to 28 U.S.C. 636 (c), and Local Rule 72(a) of the Rules of this Court, compelling production of certain documents as described in the attached Memorandum of Law, extension of the fact discovery period as appropriate after review of the newly disclosed documents and the opportunity to depose relevant witnesses based on any newly acquired information resulting from this Motion to Compel, together with such relief as the Court deems just and proper.
Section 636(c) applies when civil litigants have consented to full jurisdiction before the Magistrate Judge, a situation not applicable here. Instead, the Court will review Judge Feldman's Decision and Order to determine whether it is, "cearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). Plaintiff also cites to Western District of New York Local Rule of Civil Procedure 72, which provides in pertinent part as follows:
a) Nondispositive Matters. All orders of the Magistrate Judge authorized by 28 U.S.C. § 636(b)(1)(A) shall be final unless a party timely files written objections. The specific matters to which the party objects and the manner in which it is claimed that the order is clearly erroneous or contrary to law shall be clearly set out in the objections..
(c) Certification. Any party filing objections to a Magistrate Judge's order or recommended disposition must include with the objections to the District Judge a written statement either certifying that the objections do not raise new legal/factual arguments, or identifying the new ...