Cohen v. Consilio LLC

Background

The dispute arose from Cohen’s employment as a document reviewer in Consilio’s Minneapolis office. Cohen alleged that Consilio was required to pay overtime to him and similarly situated employees despite adopting a policy that exempted document reviewers from overtime pay. The district court had dismissed three counts but left claims under the Fair Labor Standards Act, the Minnesota Wage Theft Act, the Minnesota Fair Labor Standards Act, and Minnesota Statutes section 181.101.

Consilio paid Cohen and putative Minnesota class members overtime and liquidated damages in November 2021 while reserving its defenses. After some employees contacted Cohen’s lawyer about the payments, Cohen’s counsel described the communications in an email to Consilio’s counsel and declined to identify the employees, asserting attorney-client privilege and attorney work-product protection.

Discovery Dispute

Consilio’s Interrogatory No. 4 sought the identities and contact information of current and former employees who had communicated with Cohen, his attorney, or anyone acting for him about the complaint or Cohen’s claims. It also sought the substance of the communications, information about any transcripts, and documents exchanged.

The court focused on communications with Cohen’s counsel rather than communications between Cohen and other individuals. Attorney-client privilege protects confidential communications made to obtain or provide legal advice, including communications from prospective clients. The court found that attorney Earl Singh’s declaration, together with the January 24 email, sufficiently showed that unnamed current and former Consilio employees had contacted him to obtain legal advice about Consilio’s November 2021 overtime payments and related communications.

Court’s Analysis

The court held that the contents of those legal-advice communications were privileged. It also applied the confidential-communications exception to the ordinary rule that a client’s identity is not privileged. Under that exception, identity may be protected when revealing it would effectively disclose the confidential purpose or substance of the person’s communication with the lawyer.

The court concluded that identifying the employees who contacted Singh to seek legal advice about the November 2021 payments and communications would reveal the general purpose of their contacts. Those identities and the other information requested by Interrogatory No. 4 could therefore be withheld for that category of communications.

The court rejected retaliation concerns and promises of confidentiality as independent grounds for withholding information. It also found that Cohen had waived objections based on relevance, proportionality, and burdensomeness because he had not raised those objections in response to the interrogatory.

Order

The court granted in part and denied in part Consilio’s motion to compel further responses to Interrogatory No. 4. The motion was granted because Cohen had to answer the interrogatory in full, by June 24, 2022, for any individual who communicated with him or his representatives about the complaint or his claims for any reason other than seeking legal advice about Consilio’s November 2021 communications and payments.

The motion was denied because Cohen did not have to answer any part of the interrogatory concerning communications with Earl Singh for the purpose of seeking legal advice about those November 2021 communications and payments.