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Macfarlane v. Fivespice LLC

United States District Court, D. Oregon

May 4, 2017

KIERSTEN MACFARLANE, Plaintiff,
v.
FIVESPICE LLC dba CAFÉ MURRAYHILL, Defendant.

          Stephen L. Brischetto, Dezi Rae Robb, Law Offices Attorneys for Plaintiff

          Jennifer A. Nelson, Alysia J. Harris, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ United States District Judge.

         Plaintiff 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.

         BACKGROUND

         This 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.

         In 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.

         STANDARDS

         Parties “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)).

         DISCUSSION

         Plaintiff 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 employment.

         I. Virgen's Post-Employment Conversations with Defendant's Attorney

         Plaintiff 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 ...

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