UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

Karen Cooper and Linda Dykeman

v. Civil No. 17-cv-601-JNL-AKJ Opinion No.

YMCA of Greater Providence and Steven G. O’Donnell1

ORDER

On November 7, 2018, the court and the parties held a

telephone conference to discuss, among other issues,

(1) GPYMCA’s privilege claims over a February 10, 2017 email and

its two attachments and (2) whether GPYMCA waived privilege over

communications with its counsel in January and February 2017 by

raising certain affirmative defenses. In an order dated

November 8, 2018, the court partially addressed the first issue,

ordered further in camera submissions relating to the CEO

Recommendations 2.7.16 attachment and Part 5 of the Board Update

1 Defendant The Greater Providence Young Men’s Christian Association (GPYMCA) informs the court, with every filing, that it is improperly named in the case caption as “YMCA of Greater Providence.” It is unclear to the court why, a year into this litigation, this defendant has not yet moved to amend the case caption to correct this error. To save this defendant the effort of including this informative footnote in every filing, the court sua sponte orders the caption amended to replace “YMCA of Greater Providence” with “The Greater Providence Young Men’s Christian Association.” 2.10.17 attachment, and permitted briefing on the second issue.

Having reviewed the parties’ submissions and briefing, the court

orders as follows.

Board Update 2.10.17 attachment. GPYMCA submits that

Part 5 of the Board Update 2.10.17 attachment is privileged

because it is a verbatim copy of an email sent by GPYMCA’s

counsel to Jamia McDonald, former Chair of the Board of

Directors, for the purposes of providing legal advice. The

court agrees. Part 5 of the Board Update 2.10.17 is privileged

and need not be produced.

CEO Recommendations 2.7.16 attachment. GPYMCA further

submits that the CEO Recommendations 2.7.16 attachment is also

protected from disclosure. The court disagrees. GPYMCA’s

submissions make clear that (1) the attachment constitutes CEO

Steven O’Donnell’s independent evaluation of the situation,

(2) O’Donnell sent this evaluation to McDonald, not to counsel,

and (3) the Executive Committee discussed its contents in a

meeting in which counsel did not participate. It thus does not

constitute a communication between attorney and client for the

purposes of obtaining legal advice.

Nor is it protected by the work-product doctrine. In this

Circuit, the work-product doctrine may protect documents

prepared for both litigation and business decisions when, “in

light of the nature of the document and the factual situation in

2 the particular case, the document can be fairly said to have

been prepared or obtained because of the prospect of

litigation.” State of Maine v. U.S. Dep’t of Interior,

, 68 (1st Cir. 2002) (internal quotations omitted). It does

not protect “documents that are prepared in the ordinary course

of business or that would have been created in essentially

similar form irrespective of the litigation.” Id. at 70

(internal quotations omitted).

Here, as Parts 1 and 3 of the Board Update 2.10.17

attachment (which are not privileged) make clear, the Chair of

GPYMCA’s Board asked its CEO to prepare the CEO Recommendations

2.7.16 attachment to inform the Executive Committee and the

Board about “how he would like to proceed on organizational

matters . . . .” The Executive Committee discussed his

recommendations in a session without counsel present.

Regardless of whose idea it may have been to obtain them, the

CEO’s views on how to proceed on organizational matters,

prepared for a discussion without counsel present, fall into the

category of documents that “would have been created in

essentially similar form irrespective of the litigation.”

Maine, 298 F.3d at 70. Nothing in GPYMCA’s submissions suggests

otherwise. Accordingly, the CEO Recommendations 2.7.16

attachment is not privileged and must be produced.

3 Affirmative defenses. The plaintiffs also argue that

GPYMCA waived privilege over communications with its counsel in

January and February 2017 by raising two affirmative defenses:

the good-faith and Faragher-Ellerth defenses.

GPYMCA does not dispute that it has raised those defenses.

First, GPYMCA asserted that it “acted at all times in good faith

with respect to Plaintiffs, and in full compliance with all

applicable laws.”2 It also asserted what is called a Faragher-

Ellerth defense, which the First Circuit Court of Appeals has

characterized as follows: “Under Title VII, an employer is

subject to vicarious liability for sexual harassment by an

employee's supervisor which does not constitute a tangible

employment action. But the employer may prevail if it

demonstrates a two-part affirmative defense: that its own

actions to prevent and correct harassment were reasonable and

that the employee's actions in seeking to avoid harm were not

reasonable.” Monteagudo v. Asociacion de Empleados del Estado

Libre Asociado de Puerto Rico,

(1st Cir.

2009). Invoking this defense, GPYMCA alleges that, at all

relevant times, it “had an effective policy for the prevention

and correction of unlawful practices, including requesting

accommodations,” but that “Plaintiffs unreasonably failed to

2 Amended Answer (doc. no. 38) at 17.

4 utilize it in connection with the allegations of unlawful

practices asserted in the Amended Complaint.”3

The plaintiffs argue that, by raising these defenses,

GPYMCA has put at issue its communications with its counsel

about its investigation into the plaintiffs’ complaints in

January and February 2017, and thus waived the attorney-client

privilege over those communications.4 “[T]he clear majority view

is that when a Title VII defendant affirmatively invokes a

Faragher–Ellerth defense that is premised, in whole or part, on

the results of an internal investigation, the defendant waives

the attorney-client privilege and work product protections for

not only the report itself, but for all documents, witness

interviews, notes and memoranda created as part of and in

furtherance of the investigation.” Angelone v. Xerox Corp., No.

09-CV-6019,

, at *2 (W.D.N.Y. Sept. 26, 2011)

(collecting cases). Here, the plaintiffs filed internal

complaints of discrimination and harassment on January 19, 2017.

GPYMCA hired an independent, third-party investigator to

investigate the plaintiffs’ complaints. GPYMCA does not claim

3 Amended Answer (doc. no. 38) at 17. 4 Plaintiffs’ Mem. (doc. no. 49) at 1. Plaintiffs concede, for purposes of this motion, that the privilege would protect those communications but for the assertion of those defenses. Id. at 5.

5 privilege over the contents of that investigator’s report or the

interviews and documents underlying it.5

The privilege is not, however, waived when the defendant

“does not rely on the content of the communications with [its

attorney] or the fact that [the attorney] was consulted to

support the reasonableness of its actions.” Marquez-Marin v.

Lynch, No. 3:16-CV-01706-JAW,

, at *8 (D.P.R.

Mar. 15, 2018); see also Bacchi v. Massachusetts Mut. Life Ins.

Co.,

(D. Mass. 2015) (“[M]erely

pleading a good faith defense does not by itself waive

privilege.”). Similarly, “there is no waiver if the defendant

intends to establish its good faith defense by showing that its

conduct was actually lawful, or was actually approved by

regulators, and does not intend to rely on counsel’s opinion or

advice.” Bacchi,

. Thus, when “an

attorney had been consulted about an investigation but did not

himself or herself conduct interviews, make disciplinary

decisions, or otherwise participate in the investigation itself,

the contents of the attorney’s advice to the client about the

investigative process and the decisions made by the employer

remain privileged.” McKenna v. Nestle Purina PetCare Co., No.

2:05-CV-0976,

, at *4 (S.D. Ohio Feb. 5, 2007).

5 GPYMCA’s Mem. (doc. no. 48) at 12.

6 Here, GPYMCA may have consulted one or more attorneys about

the investigation and may have sought advice about how to

proceed in light of the plaintiffs’ complaints and the

independent investigation’s results. Because GPYMCA has

affirmatively represented that it does not rely on the advice of

that counsel in asserting or proving its good-faith and

Faragher–Ellerth affirmative defenses,6 those communications

remain privileged.

The plaintiffs argue that, even absent reliance on the

advice of counsel, O’Donnell’s alleged independent investigation

and his resulting recommendations and conclusions waive the

privilege.7 As discussed supra, however, O’Donnell’s independent

recommendations -- and any conclusions he communicated to the

Board contemporaneously with those recommendations, or his bases

for those communications -- lack the protection of the attorney-

client privilege to begin with. The fact that GPYMCA’s counsel

may have suggested that O’Donnell prepare those recommendations

neither clothes them with the privilege nor waives the privilege

that protects GPYMCA’s communications with its counsel more

generally.

6 GPYMCA’s Mem. (doc. no. 48) at 12. 7 See Plaintiffs’ Mem. (doc. no. 49) at 5-6.

7 SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: December 12, 2018

cc: David S. Cass, Esq. Alexsa Marino, Esq. Jillian S. Folger-Hartwell, Esq. John D, Doran, Jr., Esq.

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