Carman v. Signature Healthcare, LLC
| Decision Date | 18 February 2020 |
| Docket Number | CIVIL ACTION NO. 4:19-CV-00087-JHM-HBB |
| Parties | ANASTASIA CARMAN on behalf of Herself and All Others Similarly Situated PLAINTIFF v. SIGNATURE HEALTHCARE, LLC; STAKEHOLDER PAYROLL SERVICES, LLC; And LP CALHOUN, LLC DEFENDANT |
| Court | U.S. District Court — Western District of Kentucky |
This order addresses Defendant Signature Healthcare, LLC's production of documents and claims of privilege. During a telephonic status conference on February 3, 2020 the undersigned directed Signature Healthcare to produce for in camera review the privilege log and related documents for which it asserts privileged status (DN 46). The undersigned has completed in camera review of the documents. The privilege log is attached to this Order as an exhibit.
The communications are nineteen e-mails and one memorandum, the earliest dated June 15, 2016 and the latest February 22, 2019. The subjects are issues associated with the enforceability of agreements to submit employment disputes to arbitration and the impact of the decision of the Kentucky Supreme Court in N. Ky. Area Dev. Dist. v. Snyder, 570 S.W.3d 531 (Ky. 2018), which held enforcement of such agreements is prohibited by state statute. The majority of the e-mails were authored by Quita Bunton, whom Signature Healthcare has identified as in-house counsel. Eight were authored by attorneys, identified by Signature Healthcare as outside counsel, and the memorandum was authored by an individual whom Signature Healthcare has identified as a legal extern.
All the e-mails sent by outside counsel were addressed to Ms. Bunton. The memorandum likewise indicates that it was prepared for her review. Some of the e-mails sent to Ms. Bunton were copied to others. Likewise, when Ms. Bunton sent e-mails to outside counsel she often copied other persons. Ms. Bunton sent four of the e-mails solely inter-company. The persons copied on communications or receiving inter-company communications held the following positions within Signature Healthcare: in-house counsel; paralegal; human resources; legal assistant; president and chief executive officer; chief financial officer; chief operating officer; labor relations; and legislative affairs.
Carman asserts a cause of action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Additionally, she asserts a cause of action under the Kentucky Wage and Hours Act, asking that the Court exercise supplemental jurisdiction over her state law claims under 28 U.S.C. § 1367 (DN 1). Consequently, as this action does not arise from diversity jurisdiction, the Court looks to federal law to determine the parameters of privilege claims. See Reed v. Baxter, 134 F.3d 351, 355 (6th Cir. 1998) (citing Fed. R. Evid. 501).
Rule 26(b)(1) of the Federal Rules of Civil Procedure mandates that privileged matters are afforded an absolute protection from discovery. The attorney-client privilege is available to corporate entities. Burton v. Zwicker & Assocs., PSC, No. 10-227-WOB-JGW, 2012 U.S. Dist. LEXIS 195470, *4 (E.D. Ky. Jan. 9, 2012). It "is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389, (1981) (citations omitted). The aim of this privilege is "to encourage full and frank communicationbetween attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Id. at 389; Hunt v. Blackburn, 128 U.S. 464, 470 (1888). In re Antitrust Grand Jury, 805 F.2d 155, 162 (6th Cir. 1986) (citing Fisher v. United States, 425 U.S. 391, 403 (1975)). Under federal common law the elements of the attorney-client privilege are as follows:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.
Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir.1998) (citing Fausek v. White, 965 F.2d 126, 129 (6th Cir.1992); United States v. Goldfarb, 328 F.2d 280, 281 (6th Cir.1964)).
The request for advice need not be express, and communications intended to keep the attorney advised of continued developments, with an implied request for legal advice thereon, or self-initiated attorney communications intended to keep the client posted on legal developments and implications may also be protected. See Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 144-45 (D. Del. 1977). Not every communication to or from an attorney is subject to the attorney-client privilege. Communications not involving legal advice, such as communications seeking business advice, are not protected. Burton, 2012 U.S. Dist. LEXIS 195470 at *4. However, where legal consequences of various business options are discussed, the communication is generally considered legal rather than business advice in nature. See In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1037-38 (2d Cir. 1984). Determining the applicability of the attorney-client privilege is a mixed question of law and fact. Reed, 134 F.3d at 355-56.
Where, as here, in-house counsel is involved the communications may involve both business and legal considerations. "Accordingly, the privilege applies to communications with in-house counsel only if the communication's main purpose is to get or give legal assistance." Burton, 2012 U.S. Dist. LEXIS 195470, at *5. The peripheral involvement of in-house counsel, such as simply being copied on a communication, does not suffice to demonstrate that the purpose of the communication is that of legal advice. "What would otherwise be routine, non-privileged communications between corporate officers or employees transacting the general business of the company do not attain privileged status solely because in-house or outside counsel is 'copied in' on correspondence or memoranda." Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609, 633 (M.D.Pa. 1997); U.S. Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 163-64 (E.D.N.Y. 1994) ().
The e-mails can be divided into three categories: (1) e-mails from Quita Bunton to outside legal counsel; (2) e-mails to Ms. Bunton from outside counsel and (3) e-mails from Ms. Bunton to other employees of Signature Healthcare.
Seven of the e-mails listed in the privilege log represent communications from Ms. Bunton to outside legal counsel. Review of the communications demonstrates that each was soliciting advice or information related to arbitration agreements, the impact of the Snyder case or the status of the Snyder case. Some of the e-mails were copied to other Signature Healthcare employees, however the subject of the legal discussion appears to be within the scope of those employees' corporate duties, and thus subsumed within the ambit of the attorney-client privilege. See UpjohnCo. v. United States, 449 U.S. 383, 394 (1981); McQuay v. TVA, No. 4:17-CV-00101-JHM, 2018 U.S. Dist. LEXIS 153460, at *17 (W.D. Ky. Sept. 10, 2018); see also Burkhead & Scott, Inc. v. City of Hopkinsville, No. 5:12-CV-00198-TBR, 2014 U.S. Dist. LEXIS 166374, at *23 n. 5 (W.D. Ky. Dec. 1, 2014) (). The undersigned concludes that the purpose of each communication is related to a request for legal advice regarding arbitration agreements and how the Snyder case impacted such agreements. The communications are subject to the attorney-client privilege.
Eight of the e-mails listed in the privilege log are addressed to Ms. Bunton from outside legal counsel. Each is directed to the provision of legal advice related to arbitration agreements, the impact of the Snyder case or the status of the Snyder case and related to Ms. Bunton's earlier inquiries. Some of the e-mails copy other Signature Healthcare employees, but each of those employees appear to have corporate responsibilities which could be impacted by the legal advice. The undersigned concludes that the communications are subject to the attorney-client privilege.
Four of the e-mails are from Ms. Bunton to other Signature Healthcare employees and do not involve outside legal counsel. "Nothing is harder to disentangle in the modern business world than in-house counsel who gives legal advice but is also intimately involved with the business operations of the client." Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine, A.B.A. SEC. PUB. LITIG. Vol. 1 at 347 (5th ed. 2007). Whether these communications are afforded privileged status depends on whether they provide legal advice or simply address business matters. In this regard "[L]egal and business considerations may frequently be inextricably intertwined when legal advice is rendered in the corporate context, but the fact thatbusiness considerations are weighed when legal advice is rendered will not vitiate the attorney-client privilege." United States v. Cavallo Nero Ins., Inc., No. 5:16-CV-279-JMH-REW, 2017 U.S. Dist. LEXIS 50398, at *10 n. 8 (E.D. Ky. Jan. 3, 2017) (quoting Picard Chemical Inc. Profit Sharing Plan v. Perrigo Co., 951 F. Supp. 679, 685-86 (W.D. Mich. 1996)). Notably, Ms. Bunton's e-mail signature block identifies her position as "Associate Counsel, Litigation," suggesting that her primary duties lie in litigation-related matters as opposed to general business consulting. Upon review of the...
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