Brown v. Barnes and Noble, Inc.

Background

Barnes and Noble, Inc. moved for reconsideration of part of the court’s December 23, 2019 Opinion and Order. That earlier order had granted in part the plaintiffs’ motion to compel production of documents listed on Barnes and Noble’s privilege log, granted the plaintiffs’ request for fees and costs related to the motion to compel, and denied Barnes and Noble’s request for fees and costs.

The remaining dispute concerned documents involving the classification of the Café Manager position as exempt or non-exempt from overtime requirements. The plaintiffs asserted a claim under the Fair Labor Standards Act and Barnes and Noble asserted a good-faith defense. The court had previously found that Barnes and Noble waived attorney-client privilege and work-product protection for documents concerning its evaluation or reevaluation of the position’s classification and its audit of the position’s duties and responsibilities.

Privilege waiver

Barnes and Noble argued that the reviewed documents did not contain explicit advice that Café Managers nationwide were legally entitled to overtime pay during the relevant period. The court rejected that argument. It explained that the documents addressed the process of classifying the position and evaluating whether that classification was proper. Those materials could bear on Barnes and Noble’s state of mind, including whether it acted in good faith and what steps it took to learn about and comply with the Fair Labor Standards Act.

The court stated that the waiver was not based merely on asserting a good-faith defense, and that it did not require production of all privileged communications relevant to the lawsuit. The waiver applied to communications and work product concerning review of the Café Manager classification, audits of job duties and responsibilities, and related communications. The court also stated that a good-faith defense based on a specific Department of Labor regulation or opinion letter would not necessarily produce the same waiver.

The court held that Barnes and Noble had not shown an intervening change in controlling law, overlooked controlling authority or facts, newly discovered evidence, clear error, or manifest injustice. It therefore denied reconsideration with respect to the waiver finding.

Fees and costs

Barnes and Noble also challenged the earlier award of the plaintiffs’ fees and costs, arguing that it had not acted in bad faith. The court explained that Federal Rule of Civil Procedure 37 does not require a finding of bad faith before awarding expenses to a prevailing party on a motion to compel. The court concluded that it had properly exercised its discretion, particularly because Barnes and Noble had withheld documents that were not privileged. It denied reconsideration with respect to the fee and cost award.

Disposition

The court’s conclusion states that the motion for reconsideration was denied. Barnes and Noble was directed to review the remaining documents on its privilege log and produce documents consistent with the ruling by March 31, 2020. The plaintiffs were directed to notify the court within one week after receiving the documents whether additional discovery was needed. The plaintiffs were also directed to submit a motion for fees and costs by March 31, 2020; Barnes and Noble was given two weeks to oppose that motion, with no reply permitted. The clerk was directed to terminate the motion at ECF No. 278.