United States District Court, D. Oregon
Stephen L. Brischetto, Dezi Rae Robb, Law Offices Attorneys
Jennifer A. Nelson, Alysia J. Harris, Ogletree, Deakins,
Nash, Smoak & Stewart, P.C. Attorneys for Defendant
OPINION & ORDER
A. HERNÁNDEZ United States District Judge.
Kiersten MacFarlane formerly worked at Defendant Fivespice
LLC's (“Fivespice”) Café Murrayhill
(“Café”) as a server. She alleges
employment discrimination claims against Defendant under 42
U.S.C. § 2000e et. seq and Oregon law.
Specifically, Plaintiff alleges that Defendant's former
employee sexually harassed her and that Defendant unlawfully
fired her in retaliation for complaining about that
harassment. Plaintiff's counsel deposed Defendant's
former executive chef Martin Virgen. At that deposition,
Virgen was instructed not to answer questions regarding
conversations he had with Defendant's attorneys both
during and after his employment with Defendant. Before the
Court is Plaintiff's motion to compel answers to those
questions pursuant to Federal Rule of Civil Procedure 37.
Because Virgen's communications with Defendant's
attorneys are protected by attorney-client privilege,
Plaintiff's motion is DENIED.
case stems from Plaintiff's claims that Defendant's
former chef, Jose Ayala, sexually harassed her. Compl. ¶
9, ECF 1-1. Plaintiff alleges that she reported Ayala's
harassment to Virgen on multiple occasions. Id.
Virgen allegedly disregarded Plaintiff's complaints and
tacitly endorsed Ayala's behavior. Id. Plaintiff
then informed the Café's general manager, David
Lawler, who responded that he would speak with Virgen about
the situation. Id. Within a week of Lawler's
response, Virgen and Lawler met with Plaintiff and terminated
her employment at the Café. Compl. ¶ 10.
response to her termination, Plaintiff filed an employment
discrimination charge with the Oregon Bureau of Labor and
Industries (“BOLI”) and the Equal Opportunity
Commission. Compl. ¶ 13. One of Defendant's former
attorneys, Sean Driscoll, met with Virgen at the Café
while Virgen was still employed with Defendant to discuss
Plaintiff's BOLI Complaint. Lawler Decl. ¶ 1, ECF
22-2. Shortly thereafter, Virgen resigned from his employment
with Defendant. As a former employee, Virgen met with one of
Defendant's current attorneys, Alysia Harris, to discuss
Plaintiff's claims. At his deposition, Virgen testified
that Plaintiff complained to him about Ayala's behavior.
When Plaintiff's attorney asked Virgen if he told
Driscoll about Plaintiff's complaints, Defendant's
attorney objected asserting attorney-client privilege and
Virgen was instructed not to answer the question. Virgen
Decl. 126-28, ECF 22-1.
“may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or
defense.” Fed.R.Civ.P. 26(b)(1). Pursuant to Federal
Rule of Civil Procedure 37, a party may move for an order
compelling a discovery response if a deponent fails to answer
a question asked in accordance with Rule 30. Fed.R.Civ.P.
37(a)(3)(B). Rule 30 provides that a person may instruct a
deponent not to answer a question when necessary to preserve
a privilege. Fed.R.Civ.P. 30(c)(2). The party asserting the
attorney-client privilege has the burden of establishing the
relationship and privileged nature of the communication.
United States v. Richey, 632 F.3d 559, 566 (9th Cir.
2011) (citing United States v. Bauer, 132 F.3d 504,
507 (9th Cir.1997)).
submits two motions to compel, arguing that: (1) Virgen's
post-employment conversations with Defendant's lawyers
are not privileged; and (2) Defendant waived any privilege
regarding Virgen's conversation with Driscoll during his
Virgen's Post-Employment Conversations with
argues that the attorney-client privilege does not protect
Virgen's post-employment communications with
Defendant's attorney because, as a former employee, he
was not acting at the direction of management and his
interests were adverse to Defendant's interests. Under
Federal Rule of Evidence 501, “federal law governs the
availability and scope of the attorney-client privilege in
nondiversity actions.” Admiral Ins. Co. v. U.S.
Dist. Court for Dist. of Arizona, 881 F.2d 1486, 1492
(9th Cir. 1989) (citing United States v. Hodge &
Zweig, 548 F.2d 1347, 1353 (9th Cir.1977)). “The
attorney-client privilege protects confidential
communications between attorneys and clients, which are made
for the purpose of giving legal advice.” United
States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011)
(citing Upjohn Co. v. United States, 449, U.S. 383,
389 (1981)). The attorney-client privilege exists:
(1) where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by ...