Knox v. Roper Pump Company et al

REPLY BRIEF re MOTION in Limine Or, In the Alternative, MOTION to Compel Discovery

N.D. Ga.June 20, 2017

1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Brad Knox, § § Plaintiff, § § CIVIL ACTION NO. 1:16-cv- v. § 02538-ODE-JSA § Roper Pump Company, § Hansen Technologies Corporation, § And Roper Technologies, Inc. § § Defendants. § PLAINTIFF’S REPLY MEMORANDUM IN SUPPORT OF MOTION IN LIMINE OR, IN THE ALTERNATIVE, TO COMPEL DISCOVERY As an initial matter, it should be noted that Plaintiff sought Mr. Renzetti’s deposition in February of this year. (Exhibit A). Defendants delayed Mr. Renzetti’s deposition for three and half months after Plaintiff first requested it and a month after the date on which Plaintiff served a deposition notice for his deposition. (See Exhibits B, C, and D, hereto; Doc. 59, p. 1). Thus, the fact that we are having this dispute at the very end of the discovery period is not because of Plaintiff, but because Defendants waited until the end of discovery to show their hand and made their most explicit waiver of the attorney client privilege to date. Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 1 of 14 2 In responding to Plaintiff’s Motion, Defendants selectively cite to the record and, in some cases, misrepresent the testimony. One important point should be made: At the beginning of his deposition, prior to the first break – which was requested by defense counsel and is noted on page 45 -- Mr. Renzetti testified unequivocally that he did not intend Mr. Knox to release claims as part of the last chance agreement. As he testified: Q. Mr. Renzetti, can you explain for me how, if at all, the workplace would be safer by requiring Mr. Knox to release his claim of racial discrimination. MS. DENT: Object to the form. THE WITNESS: The way I remembered it, I wasn't asking him to release a right to file a racial claim with federal authorities or state authorities. I was saying, "If you're going to continue to work here, we're going to put this behind us, and these are the conditions that you have to agree to if you want to keep working here." (Renzetti Dep. p. 37:5-17). Q. Is one of the things you wanted him to put behind him was the right to recover for any racial discrimination to which he may have been subjected … whether you agree he had been or not? THE WITNESS: I wasn't looking to limit his rights under federal law. What I was looking to do is close this chapter, if he wanted to stay, and move forward as an employee with Roper Pumps. (Renzetti Dep. p. 38:4-14). Mr. Renzetti testified he did not know who drafted the release, although he believed he received it from Katye Semanson. (Renzetti Dep., Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 2 of 14 3 p. 43:18-22). Shortly thereafter, defense counsel requested a break. (Id, p. 43:23- 24). She requested again a few minutes later and the parties recessed. (Id., p. 45:21-24) After the break, Mr. Renzetti’s testimony changed and suddenly he always intended to include a release. (Renzetti Dep., p. 60:18 to 61:1). However, Renzetti admitted that he did not draft the release, he did not ask anyone to draft the release, and did not know who had done so. (Renzetti Dep., p 43:18-21; 62:21-25). Although Mr. Renzetti testified generally that he told Ms. Semanson and counsel “what we’re going to do” in providing Mr. Knox with his options, at no point did Mr. Renzetti testify that he directed or even requested anyone to include release language in the agreement. (Renzetti Dep., pp. 63:12 to 77:14). He was prevented from answering that question by Defendants’ assertion of attorney-client privilege, e.g.: A I told Katye "Here's what we're going to do," and I told the attorneys "Here's what we're going to do." Q And did you tell Katye that the last-chance agreement needed to include a release? MS. DENT: And I object. And if Katye and counsel were in this conversation together, you can't talk about that. THE WITNESS: Okay. (Renzetti Dep., p. 64:5-13). Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 3 of 14 4 Thus, Renzetti testified that he did not draft the release, he did not ask anyone to draft the release, and did not know who had done so. (Renzetti Dep., p 43:18-21; 62:21-25). He testified only that he told Ms. Semanson and the attorneys to follow through on the three options he had decided to offer Mr. Knox. (Id, p. 64:5-13). As has been previously briefed, Mr. Knox was not informed that a release would be required if he accepted the last chance agreement option. Ms. Semanson has testified that counsel drafted the last chance agreement and that she did not know why the release was included, other than what she may have been told by counsel, which Defendants refused to permit her to disclose: Q Who made the decision to include the release agreement in the -- the release in the last-chance agreement? MS. DENT: And my instruction is if you know that independently of what I told you or other counsel told you, you can answer. If you don't, then it's privileged because you learned it from counsel. THE WITNESS: The last-chance agreement was written by our counsel. BY MR. BILLIPS: Q And do you have personal knowledge as to the reasons why counsel included the last-chance agreement? MS. DENT: And, again, my instruction – MR. BILLIPS: I asked other than what counsel told you. Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 4 of 14 5 MS. DENT: I'm explaining to her what you mean by "personal knowledge." MR. BILLIPS: Well, okay. Let me -- I'll explain. BY MR. BILLIPS: Q Other than what counsel told you, do you have personal knowledge as to why the release agreement was included in the last-chance agreement? A No. (Semanson Dep., pp. 34:22 to 35:22). Greg Anderson, Mr. Renzetti’s boss, did not make the decision to require a release nor did he know who did make that decision. (Anderson Dep., pp. 26:5 to 27:23). Bettina Ginns did not make the decision nor know who did so, as she was told of the existence of the release requirement by Katye Semanson, who did not know herself. (Ginns Dep., pp. 95:20 to 96:9). Thus, there is no evidence on this record that any of the individuals involved in the drafting of the release ever communicated to the persons who drafted it – counsel – that they wanted a release to be included. The fact that – after a recess in his deposition – Mr. Renzetti’s changed his testimony from “I wasn't asking him to release a right to file a racial claim with federal authorities or state authorities” to “In my mind, there was always going to be a release in every agreement we put Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 5 of 14 6 forward” is of no importance unless he communicated that desire to the people drafting the last chance agreement. This failure to show the motivation of the person(s) – counsel – who drafted the last chance agreement in including release language is crucial. Everyone has admitted that, when Mr. Knox was first given the option of attending anger management counsel on September 29, 2015, there was no mention of a release. There was no mention of a release in connection to the last chance agreement on October 6, when Mr. Knox spoke to Mr. Renzetti nor on October 7 when he spoke to Ms. Semanson. It was not until the document was actually drafted, on October 9, 2015, that a release was included. That decision was, apparently, made by counsel, i.e., either Ms. Nealis or Mr. Cameron, only a few days after Mr. Knox’s racial discrimination complaint. In order to rebut the prima facie case of discrimination or retaliation, the employer must articulate and support by admissible evidence a legitimate, nondiscriminatory reason for the decision. The rebuttal to the prima facie case must be supported by admissible evidence, must be specific to the action at issue, and may not rely on generalities or reasons asserted by other people: The defendant cannot testify in abstract terms as to what might have motivated the decision-maker; it must present specific evidence regarding the decision-maker's actual motivations with regard to Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 6 of 14 7 each challenged employment decision. See IMPACT, 893 F.2d at 1193-94. (emphasis added). Walker v. Mortham, 158 F.3d 1177, at 1182 n. 8 (11 th Cir. 1998). Such testimony must come from the person making the decision, as “it is axiomatic that one cannot know another’s state of mind.” Bui v. Haley, 321 F.3d 1304, 1314-16 (11th Cir. 2003). In this case, it is apparent that the decision to include a release was made by counsel and there is no record evidence that anyone instructed counsel to do so. Moreover, it is Defendant’s burden, in meeting the burden of production, to show the motivation of each individual involved in the decision-making process, because “[d]isparate treatment analysis ‘requires that none of the participants in the decision making process be influenced by racial bias.’ Gerwens, 874 F.2d at 1542 n. 13. "Thus the motivations of both the [upper management] and of [middle management] are pertinent." Id. Anderson v. WBMG-42, 253 F.3d 561, 566 (11 th Cir. 2001). It has become painfully obvious what Defendants intend to do: They intend to rely on Mr. Renzetti’s testimony that “In my mind, there was always going to be a release in every agreement we put forward” (Renzetti Dep., p. 60:18-20) (while ignoring his prior testimony to the contrary (Renzetti Dep. p. 37:5-17; p. 38:4-14)), coupled with his testimony that “I told Katye ‘Here's what we're going to do,’ and I told the attorneys ‘Here's what we're going to do.’ (Renzetti Dep., p. 64:3-7) and Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 7 of 14 8 his testimony that he “reviewed the documents and thought they were good” (Renzetti Dep., p. 73:10-13) to ask the Court to infer that “here’s what we’re going to do” included telling counsel to include a release. Such an inference would be improper, given that Defendants instructed Renzetti not to answer that very question. (Renzetti Dep., p. 64:8-13). This is a case where Defendant’s have interjected a fact – Renzetti’s communications with counsel about the last chance agreement – into the case as a means of meeting their rebuttal burden. Thus, there is a waiver of privilege with regard to Renzetti’s communications with counsel about the last chance agreement. He testified: “I told the attorneys ‘Here’s what we’re going to do.’ He also testified: A Here's my answer. My answer is I run Roper Pumps. I gave guidance of what I wanted these documents to entail. They were drafted. I reviewed them. I agreed with them, and I sent them on to Brad so he could make an informed decision on how he'd like to proceed. (Renzetti Dep., p. 68:6-11). Defendants should not be permitted to rely on Renzetti as the person who decided to include the release, given that Plaintiff was not permitted to inquire whether he actually directed or requested the authors of the last chance agreement to include a release. His mere approval of the language created by counsel after the fact is both insufficient to permit the inference Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 8 of 14 9 Defendant intends to request and demonstrates that – if he is to testify about the last chance agreement -- Plaintiff needs to have full discovery as to its creation, the source of the release language, any communications related thereto, and whether counsel included that language because of Mr. Knox’s race discrimination claims. Renzetti’s testimony is a waiver of the privilege with regard to his communications with counsel regarding the last chance agreement, as he testified (at least in part) to the substance of those communications, by testifying that he gave direction as to the content of the last chance agreement and was satisfied with the contents. A partial waiver of the attorney client privilege operates as a complete waiver of all communications regarding the same subject matter. See In re von Bulow, 828 F.2d 94, 102–03 (2d Cir. 1987) (discussing attorney-client privilege, noting that the “subject matter waiver” doctrine “allows the attacking party to reach all privileged conversations regarding a particular subject once one privileged conversation on that topic has been disclosed”); Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1417-18 (11th Cir.1994) (quoting In re Von Bulow): We have observed that the doctrine of waiver by implication reflects the position that the attorney-client privilege “ ‘was intended as a shield, not a sword.’ ” GAB Business Services, Inc. v. Syndicate 627, 809 F.2d 755, 762 (11th Cir.1987) (applying Florida law) (quoting Pitney–Bowes, Inc. v. Mestre, 86 F.R.D. 444, 446 (S.D.Fla.1980)). In other words, “[a] defendant may not use the privilege to prejudice his opponent's case or to disclose some selected communications for self- serving purposes.” United States v. Bilzerian, 926 F.2d 1285, 1292 Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 9 of 14 10 (2d Cir.), cert. denied 502 U.S. 813, 112 S.Ct. 63, 116 L.Ed.2d 39 (1991); accord United States v. Jones, 696 F.2d 1069, 1072 (4th Cir.1982) (“Selective disclosure for tactical purposes waives the privilege.”). * * * The great weight of authority holds that the attorney-client privilege is waived when a litigant places information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would be manifestly unfair to the opposing party. Conkling v. Turner, 883 F.2d 431, 434 (5th Cir.1989) (emphasis added) (internal quotation *1418 omitted); * * * As a district court in our Circuit has observed: “[a]ll of these established exceptions to the rules of privilege have a common denominator; in each instance, the party asserting the privilege placed information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would have been manifestly unfair to the opposing party.” Pitney–Bowes, Inc. v. Mestre, 86 F.R.D. 444, 447 (S.D.Fla.1980) (quoting Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wash.1975)). Once a party waives the attorney-client privilege as to a communication, the waiver generally “extends to all other communications relating to the same subject matter.” BellSouth Adver. & Publ'g Corp., 1992 WL 338392, at *8. Further, “once Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 10 of 14 11 waived, the attorney-client privilege cannot be reasserted.” United States v. Suarez, 820 F.2d 1158, 1160 (11 th Cir.1987). Defendants’ repeated assertion that it is not intending to rely on an advice of counsel defense or testimony from counsel is of no matter: The defendant need not raise an affirmative defense to inject a new issue into the case, although it frequently occurs that way. Cf. Lorenz, 815 F.2d at 1098 (stating that new issues are “[m]ost often” injected “through the use of an affirmative defense”). (emphasis added). Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1419 (11th Cir.1994). Thus, the question is whether Defendants have waived the privilege and to what extent does that prejudice Plaintiff. In this case, because the inclusion of the release language was indisputably done by counsel and Defendants have objected to counsel’s testimony about that language, Defendants must explain that inclusion somehow. They have attempted to do so through Mr. Renzetti, by having testify generally to having given counsel instructions and then being satisfied with their work product, implying (but not expressly stating) that the final product contains what he said it should contain and nothing else. Despite the fact that the testimony does not actually support such an inference, to the extent it is intended to do so, this partial waiver of the privilege must, in fairness, permit Plaintiff to obtain the remainder of the communications, Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 11 of 14 12 particularly given Mr. Renzetti’s initial, clear and emphatic testimony that he did not intend Mr. Knox to release any rights whatsoever by virtue of the last chance agreement. Therefore, in fairness, either Mr. Renzetti’s testimony about the last chance agreement must be excluded or Plaintiff must be entitled to obtain the written communications on Defendants’ privilege log, re-depose those witnesses involved in relevant communications and depose, in full, Ms. Nealis and Mr. Cameron. As stated in his opening brief, Plaintiff would far prefer the former. As a result, Plaintiff would now have to, essentially, substantially redo the depositions already conducted, possibly take new depositions, and even seek additional written discovery or documents. Plaintiff believes that this would not be the preferred result, as the Court previously informed Defendants that, to the extent they partially waived privilege for their own benefit, they must permit Plaintiff to conduct discovery into the remainder of the communications on the same subject matter. Cox, supra. As shown above, Defendants delayed Renzetti’s deposition until late in the extended discovery period, knowing that he would be the person from whom they would elicit the testimony in question. During his deposition, they prevented Plaintiff from obtaining answers to the specifics of the very conversations with Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 12 of 14 13 counsel to which he testified. Whether or not this delay was tactical, it had the effect of delaying the waiver of privilege until late in the discovery period, when, undoubtedly, the Court is as reluctant as Plaintiff to have discovery resume again. However, because the delay here has been caused by Defendants, if the Court is unwilling to simply strike Mr. Renzetti’s testimony, Plaintiff requests leave to reopen discovery, obtain the documents listed on Defendants’ privilege log, and conduct such discovery as the information in those documents warrants. Respectfully submitted this day, June 7, 2017. ORR, BROWN & BILLIPS, LLP /s/ Matthew C. Billips Matthew C. Billips Georgia Bar No. 057110 s/ Kristine Orr Brown Kristine Orr Brown Georgia Bar No. 554630 P.O. Box 2944 Gainesville, GA 30503 (770) 534-1980 t (770) 536-5910 f mbillips@orrbrownandbillips.com ATTORNEYS FOR PLAINTIFF Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 13 of 14 14 CERTIFICATE OF SERVICE AND TYPE SIZE AND FONT This is to certify that I have this day electronically filed a copy of the within and foregoing Reply in Support of Motion in Limine or, in the Alternative, Motion to Compel Discovery, typed in Times New Roman, 14 pt. font, with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to the following attorney of record: CHRISTOPHER M. CARR 112505 Attorney General ANNETTE M. COWART 191199 Deputy Attorney General BRYAN K. WEBB 743580 Senior Assistant Attorney General MARY CATHERINE GREABER 441858 Assistant Attorney General Respectfully submitted this day, June 19, 2017. ORR, BROWN & BILLIPS, LLP /s/ Matthew C. Billips Matthew C. Billips Georgia Bar No. 057110 s/ Kristine Orr Brown Kristine Orr Brown Georgia Bar No. 554630 P.O. Box 2944 Gainesville, GA 30503 (770) 534-1980 t (770) 536-5910 mbillips@orrbrownandbillips.com ATTORNEYS FOR PLAINTIFF Case 1:16-cv-02538-ODE-JSA Document 81 Filed 06/20/17 Page 14 of 14