Magistrate Judge Theodore H. Katz
Assistant store managers pursued a Fair Labor Standards Act (FLSA) collective action against Duane Reade Inc. Duane Reade sought a protective order declaring an inadvertently produced e-mail protected by the attorney-client privilege. The court found only the first half of the message—from human resources manager Lazarchick to Duane Reade’s senior director of human resources, and subsequently communicated to a former vice president of human resources—a privileged attorney-client communication. However, privilege was waived because Duane Reade did not diligently rectify the e-mail’s inadvertent Nov. 9, 2011, disclosure. It was not until Lazarchick’s deposition was noticed on Jan. 13, 2012, that Duane Reade reviewed relevant documents and, on Jan. 17, realized the e-mail’s production. In addition to the two-month delay between production and Duane Reade’s request for the e-mail’s return, the court noted numerous “red flags”—including the subject line’s reference to the FLSA—alerting Duane Reade’s counsel that the e-mail likely contained privileged information. Because the e-mail had been the subject of depositions, and defendants so delayed in seeking its return, concerns of fairness and prejudice tipped in plaintiffs’ favor.
