Privilege Waived In Jones Day Pregnancy Policy Litigation
The United States District Court for the District of Columbia (District Judge Moss) explains its reasoning on an issue of attorney-client privilege waiver in a pregnancy discrimination claim against Jones Day
Presently before the Court are the parties’ supplemental submissions addressing whether Jones Day waived its attorney-client privilege over a December 22, 1993 memorandum from Julie Stempe Dressing (who was the firm’s Director of Human Resources (“HR”) and HR Counsel at the time) to Patrick McCartan (who was the firm’s Managing Partner at the time) by placing Dressing’s advice to McCartan “at issue” in the litigation. See Dkt. 252; Dkt. 256. For the reasons explained below, the Court reaffirms its prior conclusion that Jones Day has waived the privilege, although the Court clarifies and expands upon its reasons for reaching that conclusion and limits its decision to those portions of the memorandum that Jones Day actually placed at issue.
The litigation involves firm pregnancy leave policy
Under that policy, as the Court explained, birth mothers are eligible for a total of eighteen weeks of paid leave—eight weeks of which is labeled “short-term disability leave” and ten weeks of which is labeled “primary caregiver leave”—while biological fathers are eligible for only ten weeks of paid “primary caregiver leave.” Id. at *26. On Plaintiffs’ telling, the policy is discriminatory because it treats biological mothers and fathers differently based on stereotypes about the respective roles of mothers and fathers in caring for their children. On Jones Day’s telling, in contrast, the policy simply recognizes that biological mothers and fathers are differently situated, and the firm provides additional leave to birth mothers merely in recognition of that difference—in short, the short-term disability leave is offered to give new mothers time to recover from the physical effects of childbirth.
Waiver
“Where the content of the attorney-client communications are ‘inextricably merged with the elements of [the privilege holder’s] case,’ ‘to deny access to them would preclude the court from a fair and just determination of the issues.’” Minebea Co. v. Papst, 355 F. Supp. 2d 518, 522 (D.D.C. 2005) (quoting Hearn v. Rhay, 68 F.R.D. 574, 582 (E.D. Wash. 1975)); see also Knox v. Roper Pump Co., 957 F.3d 1237, 1248 (11th Cir. 2020) (“[A] party waives the attorney-client privilege when that party places privileged information in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would be manifestly unfair to the opposing party.” (citation omitted)); Wi-LAN, Inc. v. Kilpatrick Townsend & Stockton LLP, 684 F.3d 1364, 1370 (Fed. Cir. 2012) (“The doctrine of implied waiver is invoked when a party makes the content of his attorney’s advice relevant to some claim or defense in the case.”). Stated more generally, the attorney-client privilege “may not be used both as a sword and a shield,” and, thus, “[w]here a party raises a claim which in fairness requires disclosure of the protected communication, the privilege may be implicitly waived.” Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992)
The court
The Court…concludes that this case is unlike KBR II and that, here, Jones Day seeks to use the privilege as a sword and a shield—or perhaps more aptly put, it seeks to have its cake and to eat it too. Jones Day wants the Court and jury to infer that McCartan approved the eight-week period of presumptive, postpartum disability leave for the reasons that Dressing describes in her declaration. The only plausible way to reach that conclusion, however, is to infer that Dressing conveyed her views to McCartan and that McCartan was convinced by her advice. That poses a problem for Jones Day, however, because the record demonstrates that Dressing conveyed her views in the December 22, 1993 memorandum—and, as far as the Court can discern, in no other manner—yet Jones Day seeks to withhold that document from Plaintiffs. Ultimately, Jones Day seeks to put Dressing’s views at issue to explain why McCartan approved the relevant policy while withholding the one contemporaneous document that not only reflects those views but that was conveyed to McCartan. Permitting Jones Day to do so would, in the Court’s view, turn the privilege into “a tool for manipulation of the truth-seeking process.” In re Sealed Case, 676 F.2d at 807.
Extent of waiver
To memorialize these conclusions on a sentence-by-sentence basis, the Court will file a sealed, ex parte version of the memorandum, which eliminates many, but not all, of the redactions that Jones Day made to the version of the memorandum that it produced in discovery. The Court will grant access to that sealed, ex parte document exclusively to Jones Day for a period of ten days, after which the Court will direct that Jones Day provide either that version of the memorandum to Plaintiffs or, if Jones Day prefers, a fully unredacted version of the memorandum. The Court recognizes that revealing non-privileged portions of a privileged memorandum can, at times, indirectly reveal the privileged advice that was sought or obtained. This, however, is not such a case. Jones Day and Dressing have already disclosed much of what is found in the memorandum, and the firm has placed Dressing’s advice regarding the adoption of the eight-week period of presumptive postpartum leave at issue in the litigation. None of the disclosures that the Court will require go beyond that scope.
(Mike Frisch)