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Parneros v. Barnes & Noble, Inc.

United States District Court for the Southern District of New York

October 4, 2019, Decided; October 4, 2019, Filed

18 Civ. 7834 (JGK) (GWG)

Opinion

 [*487]  OPINION & ORDER

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

 [*488]  This case was brought by Demos Parneros, the former Chief Executive Officer of Barnes & Noble, Inc. ("Barnes & Noble"), against Barnes & Noble to seek compensation for his firing, including claims of breach of contract and defamation. Barnes & Noble has asserted counterclaims against Parneros as well. Parneros has now filed a motion seeking to compel Barnes & Noble to produce certain documents that it has withheld on the basis of the attorney-client privilege and the work product doctrine.1 Barnes & Noble opposes this motion. For the following reasons, Parneros's motion to compel is granted in part and denied in part.

I. BACKGROUND

A. Facts [**2] 

From November 2016 until July 2, 2018, Parneros worked for Barnes & Noble, a retail bookstore chain, first as its Chief Operating Officer ("COO") and then as its Chief Executive Officer ("CEO"). See Amended Complaint, filed Oct. 12, 2018 (Docket # 16) ("Am. Compl."), ¶¶ 1, 7, 12, 22-23. On May 24, 2018, at a time when Parneros was CEO, Barnes & Noble's Chief Financial Officer, Allen Lindstrom, informed the company's General Counsel, Bradley A. Feuer, that a female employee who served as an executive assistant (the "Executive Assistant") had reported to him that Parneros sexually harassed her and made her uncomfortable. See Feuer Decl. ¶ 2. Feuer met with the Executive Assistant, and prepared notes documenting his meeting with her. Id. ¶¶ 3-4.2 Feuer asserts that he prepared the notes "so that [he] could render legal advice to the Company regarding its rights and obligations with respect to the alleged conduct by the CEO." Id. ¶ 4.

Feuer engaged outside counsel, Paul, Weiss, Rifkind, Wharton & Garrison LLP ("Paul, Weiss") on the same day he met with the Executive Assistant. Id. ¶ 6. He also "led" an investigation into the allegations, which Feuer decided he would do himself along with [**3]  "other senior executives at [his] direction." Id. ¶ 7. The Executive Assistant had specifically stated that she did not want the company's Human Resources department to be involved, id., because she was concerned that the head of Human Resources had a close relationship with Parneros, see Excerpts of the Videotaped Deposition of [the Executive Assistant], dated June 28, 2019 (annexed as Ex. B to Clark July 3, 2019, Letter), at 238-39.

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332 F.R.D. 482 *; 2019 U.S. Dist. LEXIS 172774 **; 104 Fed. R. Serv. 3d (Callaghan) 1600; 2019 WL 4891213

DEMOS PARNEROS, Plaintiff, -v.- BARNES & NOBLE, INC., Defendant.

CORE TERMS

attorney-client, documents, executive assistant, legal advice, press release, communications, privileged, termination, waived, asserts, allegations, disclose, memorandum, argues, drafts, anticipation of litigation, outside counsel, good faith, disclosure, interviews, advice, work product doctrine, render legal advice, deposition, board of directors, Reply, deposition testimony, irresponsible, work-product, declaration

Civil Procedure, Preliminary Considerations, Federal & State Interrelationships, Erie Doctrine, Evidence, Privileges, Attorney-Client Privilege, Attorney-Client Privilege, Elements, Scope, Privileged Communications, Work Product Doctrine, Scope of Protection, Waiver