In Edwards v. KB Home, No. 11-CV-00240 (S.D. Tex. July 18, 2015), the district court held that defendant’s assertion of the affirmative defense of good faith belief in the lawfulness of defendant’s conduct waived privilege as to communications with counsel relating to the same subject.  In this Fair Labor Standards Act case, plaintiffs asserted that defendant misclassified them as exempt employees not entitled to overtime wages.  Defendant asserted a statutory affirmative defense of good faith belief, which if proven, would prevent the imposition of statutory liquidated damages.  When plaintiffs sought discovery of defendant’s communications with counsel on the subject, defendant objected on grounds of attorney-client privilege.  Defendant argued that it was not asserting an advice-of-counsel defense and would not be relying on any advice received from counsel, therefore, it had not put communications with counsel “at issue.”  The court held that defendant had put the communications at issue, and thus defendant had waived privilege.  The court explained that, if adopted, defendant’s approach would create a “heads I win, tails you lose” result in which a party asserting good faith could use attorney communications that help its cause, but shield the communications when they do not by characterizing the defense as one that does not rely on advice of counsel.  According to the court, fairness required that plaintiff have the opportunity to determine whether defendant had received advice that was contrary to the defendant’s conduct.  However, the court limited the waiver only to communications specifically concerning the classification decision.