Brown v. Barnes and Noble, Inc.

Background

Kelly Brown and Tiffany Stewart brought a nationwide proposed class and collective action under the Fair Labor Standards Act and certain state laws. They alleged that Barnes & Noble, Inc. improperly classified Café Managers as salaried employees exempt from overtime rather than hourly employees eligible for overtime.

During discovery, the plaintiffs sought documents concerning a 2005 job study and Barnes & Noble’s 2016 decision to reclassify Café Managers as non-exempt. Barnes & Noble withheld 320 documents based on attorney-client privilege or the work-product doctrine. The plaintiffs challenged the withholding, argued that Barnes & Noble had produced its privilege log too late, and sought fees and costs for bringing the motion. Barnes & Noble opposed the motion and sought its own fees and costs, arguing that the motion was brought in bad faith.

Reasonable Search and Timing of the Privilege Log

The court held that Barnes & Noble complied with its obligation to conduct a reasonable search for responsive documents. The parties spent about six months negotiating an electronically stored information search process, and Barnes & Noble then spent about six months reviewing and producing documents from relevant custodians. The court concluded that the delay was not caused by bad faith and that Barnes & Noble’s search was reasonable under the circumstances.

The court criticized Barnes & Noble for waiting until the end of its rolling production to provide a privilege log. It stated that producing parties should provide logs with each production or on a rolling basis. Nevertheless, the court found that waiver of privilege was not appropriate because Barnes & Noble had cooperated with the plaintiffs, kept them and the court informed about the production process, and provided a detailed privilege log with its final September 2019 production.

The court stated that the proper remedy for any improperly withheld documents was to give the plaintiffs additional discovery time if needed.

Privilege and Work Product

Attorney-client privilege protects confidential communications between a client and a lawyer made to obtain or provide legal advice. The work-product doctrine generally protects materials prepared because of the prospect of litigation, although fact work product may be disclosed when the opposing party shows substantial need and cannot obtain the equivalent without undue hardship.

The court reviewed a sample of 50 documents from Barnes & Noble’s privilege log. It found that most of the documents reviewed were not protected by attorney-client privilege because they did not seek or convey legal advice. Some documents, however, were protected attorney-client communications or work product, including documents concerning legal advice about state overtime exemptions, discussions with counsel about wage-and-hour issues, the 2005 audit and study, litigation strategy, and the Pennsylvania litigation involving Café Managers.

The court found that Barnes & Noble had impliedly waived privilege and work-product protection to the extent the communications concerned the Café Manager position. Barnes & Noble had asserted a good-faith defense under the Fair Labor Standards Act. The court reasoned that the plaintiffs were entitled to investigate whether Barnes & Noble had acted contrary to legal advice when classifying Café Managers as exempt, because such evidence could undermine the good-faith defense. The waiver applied even though Barnes & Noble maintained that its defense was based only on its own decision-making and not on advice from lawyers.

The waiver did not extend to privileged information or work product concerning the CBDM position, which was not relevant to this lawsuit. Barnes & Noble could redact that unrelated content. The court also found that one study attachment did not qualify as work product because Barnes & Noble had not shown that it would not have been prepared in essentially the same form without the California litigation.

Fees and Costs

The court found that the plaintiffs had made a good-faith effort to resolve the dispute before filing their motion. It also found that Barnes & Noble had not meaningfully addressed the controlling wage-and-hour cases concerning waiver based on a good-faith defense. The court therefore held that an award of the plaintiffs’ reasonable fees and costs associated with the motion was appropriate. The plaintiffs were directed to submit a fee application supported by time records, and Barnes & Noble was given time to respond.

The court denied Barnes & Noble’s request for its own attorneys’ fees and costs.

Disposition

Judge Katharine H. Parker granted in part and denied in part the plaintiffs’ motion to compel. The motion was granted in part for documents on the privilege log concerning the Café Manager position and denied in part for documents, or portions of documents, concerning the CBDM position. Barnes & Noble was ordered to review the remaining documents and produce them consistently with the decision by January 15, 2020. The court also ordered an award of the plaintiffs’ reasonable fees and costs associated with the motion and denied Barnes & Noble’s fee request.