United States District Court, M.D. Florida, Tampa Division
S. SNEED UNTIED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiffs' Motion to
Compel Deposition Testimony and Motion for Sanctions
(“Motion”) (Dkt. 39), and Defendants'
response in opposition (Dkt. 45). On January 23, 2018, the
Court held a hearing on the Motion, along with several other
discovery motions. For the reasons that follow, the Motion is
Bradley Jones filed an age discrimination complaint under the
Age Discrimination in Employment Act and the Florida Civil
Rights Act, alleging that he and other similarly-situated
persons were terminated by Defendant based on their age. (Dkt
Plaintiffs deposed Defendant's corporate representative
Angelique R. Brown on November 28, 2017. (Dkt. 38.) As part
of this deposition, Plaintiffs questioned Ms. Brown about her
discussions with Kenneth Jacobsen regarding Defendant's
termination of employees in June 2015, which included
Plaintiffs. In the Motion, Plaintiffs seek further testimony
from Ms. Brown “regarding the information and
communication with [Defendant's] in-house counsel”
Mr. Jacobsen. (Dkt. 39 at 12.)
here, when the court's jurisdiction is premised on a
federal question in a civil case, federal law of privilege
applies. Hancock v. Hobbs, 967 F.2d 462, 467 (11th
Cir. 1992); see Fed. R. Evid. 501 (providing that
federal common law governs a claim of privilege unless the
United States Constitution, federal statute, or rules
prescribed by the Supreme Court provide otherwise). The
attorney-client privilege protects the disclosures that a
client makes to his attorney, in confidence, for the purpose
of securing legal advice or assistance. Cox v. Adm'r
U.S. Steel & Carnegie, 17 F.3d 1386, 1414 (11th Cir.
Purpose of Communications
Plaintiffs argue that Defendant cannot establish that
communications between Ms. Brown and Mr. Jacobsen are
protected by the attorney-client privilege, arguing that Ms.
Brown's “vague testimony regarding discussions with
in-house counsel make it unclear whether the in-house counsel
was providing legal advice regarding the whether the RIF
[termination of employees] was lawful under the ADEA or FCRA,
or if counsel was acting as the decision-maker determining to
go forward with the RIF.” (Dkt. 39 at 4-6.)
it is true that “[w]hen advice given by an attorney
relates to both business and legal matters, the legal advice
must predominate for the attorney-client privilege to apply,
” Regions Bank v. Kaplan, No.
8:12-CV-1837-T-17, 2015 WL 5687882, at *2 (M.D. Fla. Sept.
25, 2015), Ms. Brown's deposition testimony makes clear
that she sought Mr. Jacobsen's legal advice and that Mr.
Jacobsen did not act as a decision-maker in the termination
decisions. Specifically, Ms. Brown testified that after it
was determined that terminations were needed, local
leadership selected individuals to terminate, executive
leadership reviewed and approved these selections, Ms. Brown,
who worked in Human Resources, reviewed the selections, and
her supervisor in Human Resources approved the selections.
(Dkt. 38-1 at 98-100.) As part of her review of the
selections, Ms. Brown testified that she sought Mr.
Jacobsen's legal, not business, advice regarding the
terminations and that Mr. Jacobsen approved terminations as
part of “[o]verall legal review and counsel.”
(Id. at 134.) Mr. Jacobsen, as in-house counsel, did
not rank above Human Resources. (Id. at 71-72.)
Ms. Brown's testimony is clear that she sought Mr.
Jacobsen's legal advice regarding the terminations and
that he was not a decision-maker regarding the underlying
business rationale for the terminations, the Court rejects
Plaintiffs' contention that further testimony is needed
to determine whether the purpose of the communications was
for business or legal advice.
Waiver of Attorney-Client Privilege
Plaintiffs argue that even if Ms. Brown and Mr.
Jacobsen's communications were attorney-client privileged
communications, Defendant has waived the privilege because
Ms. Brown revealed portions of these communications in her
testimony and testified that Defendant relies on Mr.
Jacobsen's legal advice in its defense of this case.
(Dkt. 39 at 6-11) (citing Dkt. 38-1 at 134:24-135:10.)
Therefore, Plaintiffs contend that “fairness
requires” Plaintiffs to be permitted to discover the
substance of Ms. Brown's and Mr. Jacobsen's
communications. (Dkt. 39 at 11.)
attorney-client privilege may be waived in the following
instances: “(1) when a client testifies concerning
portions of the attorney-client communication; (2) when a
client places the attorney-client relationship directly at
issue; and (3) when a client asserts reliance on an
attorney's advice as an element of a claim or
defense.” Regions Bank, 2015 WL 5687882, at *2
(citing Cox, 17 F.3d at 1417 (explaining that waiver
reflects the position that defendants cannot use the