U.S. Magistrate Judge John C. Nivison denied Plaintiff Anne Griffith’s discovery requests for communications between city representatives and counsel, ruling that the city had not waived the privilege because it did not intend to rely on legal advice in its defense.
Griffith, who alleged the city unlawfully denied her requests for a work-related accommodation, sought to obtain copies of those communications and conduct a deposition of the city’s counsel.
The city objected, citing the attorney-client privilege, arguing that the communications were protected confidential exchanges.
Nivison determined that federal common law governed the privilege claim because federal law supplied the rule of decision for several of Griffith’s claims.
Under federal law, the privilege protects communications made to facilitate legal advice and is waived only if a party discloses privileged material or affirmatively places the subject matter in issue for its own benefit.
Griffith argued the communications were part of the city’s decision-making process, noting that the City Manager regularly consults counsel on accommodation requests to ensure legal compliance.
The city represented it did not intend to reference the consultation with counsel or suggest its decision resulted from legal advice or received counsel’s endorsement.
Nivison distinguished the case from Young v. Maine Coast Regional Health Facilities, where a court found waiver because the employer intended to explain its decision-making process, allowing a factfinder to infer counsel perceived no legal impediment to the termination.
In Griffith, the city did not intend to present evidence that could lead a factfinder to infer that legal counsel determined the denial of accommodation requests was lawful.
Nivison warned that requiring disclosure under these circumstances would provide a disincentive for employers to consult legal counsel, frustrating the privilege’s objective of encouraging disclosures that facilitate compliance with the law.
The judge ordered that the city is not required to produce the communications and that Griffith may not conduct the deposition of the city’s counsel.
The order includes a notice that objections may be filed in accordance with Federal Rule of Civil Procedure 72.