Think privilege law is boring? Not when SDFLA Magistrate Judge Jonathan Goodman writes the privilege opinion. In Reyes v. Collins & 74th, Inc., 2017 WL 2833450 (SD Fla. June 30, 2017), Judge Goodman incorporated lyrics from Coldplay and Blues singer-songwriter Robert Cray in finding that a company’s advice-of-counsel defense waived the privilege and ordering its lawyer’s deposition. You may read the opinion here.
Consequences of a Strategic Decision
In this FLSA action for failure to pay overtime wages, the defendant company made the “strategic choice” to assert as a good-faith defense that it paid the plaintiff according to the legal advice rendered by its lawyer, Leslie Langbein.
But when plaintiff’s counsel asked the corporate representative to reveal that advice, the defense attorney—also Langbein—objected on privilege grounds. You may read the deposition transcription, available here, to see the questions to which the lawyer objected.
The plaintiff then moved to compel answers from the corporate rep, but also to take Langbein’s deposition. Judge Goodman found that Blues guitarist and singer Robert Cray best framed the company’s predicament in his song Consequences: “there’s consequences for what we do, consequences for me and you.” It’s good to see the lyrics in writing, but even better to see Cray performing Consequences live—
The first consequence of the company’s advice-of-counsel defense was a privilege-wavier finding. In short, the company cannot use the privilege as a sword—asserting the defense—and as a shield—preventing plaintiff from inquiring into that defense.
Another consequence of the company’s advice-of-counsel defense was that the court ordered that Langbein—the trial attorney who also provided the at-issue legal advice—sit for a deposition. Judge Goodman also permitted the plaintiff to obtain “any letters, memoranda or notes, which Ms. Langbein provided to her clients about complying with the FLSA.”
Privilege Waiver Escape?
Judge Goodman offered the company an escape, and cited Coldplay’s lyrics from The Escapist to explain: “And in the end / we lie awake / And we dream / We’ll make an escape.” Listen to the entire song as you consider the judge’s escape proposal—
The company may escape its lawyer’s deposition and production of her legal-advice information by removing its advice-of-counsel defense. The company will also have to agree that the statute-of-limitations is three years and that the plaintiff would be entitled to double damages if he prevails at trial.
So, the choice is to suffer Consequences or become The Escapist. See, privilege law can be fun.