In this age of Big Data, expert analyses are critical to class and collective actions. Wage and hour lawsuits hinge on experts dueling over employee time and pay data. The EEOC’s Equal Pay and systemic discrimination initiatives are driven by statisticians’ analyses of employers’ robust payroll and applicant tracking system data. In many of these cases, the courts rely on experts to tell them what the data say. And more and more, attorneys are employing experts in early case evaluations to assess class-based claims.
But what happens if you don’t like what your expert report concludes? What if the conclusions are absolutely damning? Can you withhold that information in discovery?
In most situations, the answer is “no” – unless you can show the report is somehow shielded from discovery, such as by the attorney-client privilege.
This is the problem Chipotle Mexican Grill, Inc. has been facing in an FLSA misclassification collective action in the Southern District of New York. Scott v. Chipotle Mexican Grill, Inc. (1:12-cv-08333). Prior to the collective action, the burrito chain used a third-party consultant to evaluate whether employees working in Chipotle’s apprentice position were properly classified as exempt under the FLSA. When the report later became at issue in the collective action, the company sought to protect it from disclosure, arguing that the report was protected by the attorney-client privilege. On April 30, 2015, the court disagreed, ordering Chipotle to produce the report.
Importantly, the attorney-client privilege applies only to communications that are: (1) between an attorney and client; (2) for the primary purpose of securing an opinion of law, legal services, or assistance in a legal proceeding; and (3) made and maintained in confidence. Upjohn Co. v. United States, 449 U.S. 383 (1981). While courts recognize the attorney-client privilege serves an important public purpose, they also emphasize the need to narrowly construe its applicability, as “the public . . . has a right to every man’s evidence.” United States v. Bryan, 339 U.S. 323, 331 (1950).
The attorney-client privilege can attach to communications with a third-party consultant, but only if the consultant was retained “for the purpose of obtaining or providing legal advice.” United States v. Antolini, 271 F. App’x 268, 270 n.1 (3d Cir. 2008) (citing United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961)). The third-party consultant must do more than mere fact research for a client; she must assist the attorneys in providing actual legal services or analysis. In other words, the third-party consultant must be acting as the attorney’s “agent assisting the attorney in giving legal advice to the client.” Kovel, 296 F.2d at 921.
In Chipotle, the court concluded the document could not be shielded from discovery despite the fact that the consultant’s report was directed to the company’s attorney. The report contained factual research about employee job duties; it did not assess a legal issue. Moreover, the consultant was retained by Chipotle, not a law firm. The court also examined a confidentiality agreement between Chipotle and the consultant. According to the court, had the consultant been serving as the attorneys’ agent, the agreement would have been with the law firm, not the client.
The lesson here – when obtaining an analysis from an expert consultant, attorneys must take care to establish and maintain the attorney-client privilege. Otherwise, the analysis may end up becoming your adversary’s best piece of evidence.