By Nicole D. Prysby, J.D.
An industry trade association must produce unredacted versions of handwritten notes taken at a meeting of its member agencies, held a federal district court in Colorado. The court reversed a magistrate judge’s decision that the documents were protected by the work product or attorney-client privilege. The work product privilege did not apply because the documents were not prepared by a party to the litigation, but by the trade association. In addition, the attorney-client privilege did not apply because the agency holding the privilege waived it when it shared the communications from its attorney with the trade association (Beltran v. InterExchange, Inc., February 12, 2018, Arguello, C.).
In this class action by au pairs against multiple sponsor agencies, the au pairs assert that the agencies had a collective agreement to artificially suppress au pair wages, in violation of federal and state wage law. The au pairs had moved the court to compel production of certain communications, without redaction, from an industry trade association known as the Alliance for International Exchange. The Alliance is a group of agencies that employ au pairs, including some of the defendant agencies, but is not itself a party to the lawsuit. After the lawsuit was filed, the Alliance hosted a meeting for its member agencies to address the litigation and potential responses. The au pairs sought handwritten notes from that meeting and a draft letter composed by Alliance staff as part of the meeting discussions.
During discovery, the Alliance produced a partially redacted version of the documents but later asserted that portions already produced contained privileged material. The magistrate judge denied the au pairs’ request to compel production of unredacted versions of the documents, concluding that the materials were subject to the work product or attorney-client privilege, and that the common interest doctrine prevented discovery of any portions of the documents that had been shared with third parties. The au pairs appealed.
Privilege. A subset of the redactions to the handwritten notes taken at the Alliance meetings were not protected by the work product privilege because they were not prepared in anticipation of litigation by a party or its representative. The documents were created by the Alliance’s nonlegal staff. The Alliance is not a party to the litigation nor is it a representative of the defendants to the litigation. It is a nonparty separate entity and, thus, work product privilege does not protect its notes. The work product privilege concerns the mental impressions of counsel with respect to litigation, not anything a party’s employees say or write about the litigation.
Waiver and common interest. The court agreed with the magistrate judge’s conclusion that certain redacted items in the handwritten notes were protected by attorney-client privilege. Those items were based on communications between one of the agencies and its attorney. However, the court found that the agency in question had waived the attorney-client privilege over the communications when it discussed those communications with Alliance staff at the Alliance meetings. By sharing the communications with third parties, the privilege was waived.
The agency argued that the common interest doctrine shielded the communications, but the court found it did not. The Alliance did not have an identical legal interest as the agency with respect to the litigation. The agency’s interest is to escape liability for underpayment of au pair wages. The Alliance has no such liability because it is not an employer of au pairs. Therefore, the court found that the attorney-client privilege for the redacted items had been waived by the agency and that the common interest doctrine did not shield the redactions from discovery.
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