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Barbini v. First Niagara Bank, N.A.

United States District Court for the Southern District of New York

April 29, 2019, Decided; April 29, 2019, Filed

16-cv-7887(NSR)(JCM)

Opinion

 [*457]  OPINION & ORDER

NELSON S. ROMAN, District Court Judge

The instant case presents a thorny issue of attorney-client privilege that often accompanies corporate internal investigations. In this particular case, a defendant bank conducted a sexual harassment investigation in response to employee complaints about individual defendant Hugh Lawless ("Lawless"). The bank consulted its in-house legal counsel before terminating certain employees involved. Subsequent to those terminations, Plaintiffs Claudia Barbini and Maryetta Henry commenced this litigation, raising claims for employment discrimination and retaliation. (See Complaint, ("Compl."), ECF No. 7; First Amended Complaint, ("FAC"), ECF No. 26.)

Subsequently, on May 7, 2018, KeyBank National Association1 ("KeyBank" or "Bank") submitted a Letter Motion seeking a Protective Order to preclude Plaintiffs from asking questions concerning legal advice provided by the Bank's in-house counsel. (Letter Mot. for Protective Order, ECF No. 49.) Plaintiffs then submitted a Letter Motion seeking to reopen two defendants' depositions and requesting the Bank's privilege log that described the documents being withheld and the privilege being [**3]  claimed. (Rep. Letter Mot., ECF No. 50.)

On July 16, 2018, Magistrate Judge McCarthy issued a Memorandum and Order denying the Bank's Motion for a protective order and granting in part Plaintiffs' Motion to reopen discovery, including defendants Robert McMichael's and Kotyuk Regina's depositions, to allow Plaintiffs further questioning about the discussions leading up to the Bank's decision to issue a final written warning and terminate three employees. (ECF No. 61.)

On July 31, 2018, Defendants appealed Judge McCarthy's decision insofar as denying their request for a protective order and granting Plaintiffs' request to reopen discovery to allow further questioning of McMichael. (See ECF Nos. 62, 62-1, at 3.)

For the following reasons, this Court affirms Judge McCarthy's Order.2

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331 F.R.D. 454 *; 2019 U.S. Dist. LEXIS 72689 **; 2019 WL 1922041

CLAUDIA BARBINI, et al., Plaintiffs, -against- FIRST NIAGARA BANK, N.A., et al., Defendants.

CORE TERMS

attorney-client, communications, notary, terminate, in-house, protective order, advice of counsel, deposition, advice, waived, sexual harassment, written warning, legal advice, reopen, questioning, discovery, documents, asserts, investigations, Defendants', retaliation, employees, clearly erroneous, final warning, consulted, agrees, courts