USDCSDNY DOCUf.1E1\i' ELECfROl'lICA.LLY FILED DOC#: DATE FiLED: 1~/2SI1;)

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1 Case 1:12-cv RJS-JLC Document 56 Filed 12/28/12 Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ){ RAYMOND FARZAN, USDCSDNY DOCUf.1E1\i' ELECfROl'lICA.LLY FILED DOC#: DATE FiLED: 1~/2SI1;) Plaintiff, MEMORANDUM ORDER - against 12 Civ (RJS) OLC) WELLS FARGO BANK, GENESIS 1 0, BRENDA ALTENBURG, AMY BERNARD, CHRISTINE McDONALD and MICHELLE FOWLER, Defendants ){ JAMES L. COTT, United States Magistrate Judge. I. Introduction By letter dated December 17,2012, Defendant Wells Fargo Bank, N.A. ("Wells Fargo") moved for a protective order to preclude pro se Plaintiff Raymond Farzan ("Farzan") from deposing Defendant Amy Bernard in this employment discrimination case. I Bernard is an "EEO Consultant" who works under the supervision of Wells Fargo's legal department. Affidavit of Amy Bernard dated December 14,2012 ("Bernard Aff."), 'Il'll2-3 (attached as Exhibit B to letter dated December 17, 2012 from Michelle E. Phillips, Esq., to Hon. James L. Cott) ("Wells Fargo Letter") (to be docketed), Bernard never met or worked with Farzan and has no personal knowledge of the events leading to his dismissal. Bernard Aff. 'Il'll6-7. Wells Fargo contends that Bernard solely derived her knowledge in this case from conversations with other Wells Fargo employees pursuant to an internal investigation into Farzan's discrimination claims under the direction of Wells Fargo's legal department. Wells Fargo Letter at 3-4; see also Bernard Aff. Defendants have separately moved to dismiss Farzan's Amended Complaint against Bernard "as a matter of law" under Rule 12(b)( 6) ofthe Federal Rules of Civil Procedure. See Memorandum of Law in Support of Wells Fargo Defendants' Motion to Dismiss, dated November , at 13. (Dkt. No. 46). UsOcSoNV. l~j OATE ~NeQ.' I~.I?

2 Case 1:12-cv RJS-JLC Document 56 Filed 12/28/12 Page 2 of 6 ~~ Wells Fargo thus argues that Bernard should not be deposed because her conversations with Wells Fargo employees were conducted at the direction ofin-house counsel and are protected by both the attorney-client privilege and the work product doctrine. Farzan responded in a December 21,2012 letter ("Farzan Letter") (to be docketed), arguing that Wells Fargo's letter-motion for a protective order should be denied. Farzan points out that Bernard wrote the position statement that Wells Fargo submitted to the Equal Employment Opportunity Commission ("EEOC"), in which Bernard described the circumstances of Far zan's employment as well as his subsequent termination. Farzan contends that he should be permitted to depose Bernard to inquire into alleged falsehoods in the position statement. He also claims that the cases cited by Defendants in their letter-motion are inapplicable, and that the Court previously ordered Bernard's deposition at a conference on October 10,2012. Id. 2 For the reasons stated below, Defendants' motion for a protective order is granted. II. Discussion A. Attorney-Client Privilege It is well-established that communications "by [a corporation's] employees to counsel for [the corporation] acting as such" are protected by attorney-client privilege where the communications are made "at the direction of corporate superiors [and] in order to secure legal advice from counsel." Upjohn Co. v. United States, 449 U.S. 383, 394 (1981). Attorney-client privilege may also shield communications between a client and an attorney's agent or assistant. See United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961). Thus, it is well-settled that 2 Farzan incorrectly states that the Court ordered Bernard's deposition at the conference on October 10,2012. Rather, the Court asked Farzan whom he wished to depose, and he responded with a list of names that included Bernard. Transcript of Proceedings on October 10,2012, at 7. (Dkt. No. 49). Later in the hearing, the Court noted that there might be a dispute regarding Bernard's deposition and left the issue open for further discussion at a later date. (Id. at 11-13). 2

3 Case 1:12-cv RJS-JLC Document 56 Filed 12/28/12 Page 3 of 6 "[fjactual investigations conducted by an agent ofthe attorney, such as 'gathering statements from employees, clearly fall within the attorney-client rubric. '" Gucd Am.. Inc. v. Guess?, Inc., 271 F.R.D. 58, 71 (S.D.N.Y. 2010) (citations omitted) (collecting cases). Although Defendant Bernard is not an attorney, it is undisputed that she conducted the internal investigation on behalf of Wells Fargo's in-house counsel for the purpose of representing Wells Fargo in its proceedings before the EEOC. Thus, her conversations with Wells Fargo employees are plainly protected by the attorney-client privilege. Gucci Am., Inc., 271 F.R.D. at 71; see also Robinson v. Time Warner, Inc., 187 F.R.D. 144,146 (S.D.N.Y. 1999) ("aside from questioning [outside counsel] about the substance ofhis interviews with [plaintiff in internal investigation of discrimination allegations], [plaintiffj is not entitled to question [outside counsel] or any Time Warner employee about the questions [outside counsel] asked or the answers provided during any other interviews"). B. Work Product Doctrine Pursuant to Rule 26(b )(3) ofthe Federal Rules of Civil Procedure, any materials Bernard produced to document her communications with the Wells Fargo employees may be protected under the work product doctrine ifthe investigation was conducted in anticipation of litigation. See Fed. R. Civ. P. 26(b)(3)(A); WeIland v. Trainer, No. 00 Civ (JSM), 2001 WL , at *2 (S.D.N.Y. Oct. 1,2001) (if document "was prepared 'because of existing or expected litigation" it is eligible for work product protection) (quoting United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998)). Prior to the filing of his EEOC complaint against Wells Fargo, Farzan alleges that he told his supervisor that "he would consider taking legal actions against Wells Fargo" if he was not given ajob as a full-time employee. (Am. CompI. ~ 30) (Dkt. 3

4 Case 1:12-cv RJS-JLC Document 56 Filed 12/28/12 Page 4 of 6 No. 18). Farzan was not given the full-time position that he sought, and he proceeded to file a "Charge of Discrimination" with the EEOC. It is undisputed that Bernard commenced her internal investigation only in response to the EEOC charge. Given Farzan's threat oflitigation and his filing with the EEOC, Wells Fargo justifiably anticipated litigation at the time of Bernard's investigation. See,~, Kayata v. Foote, Cone & Belding Worldwide, LLC., No. 99 Civ (VM) (KNF), 2000 WL , at *3 (S.D.N.Y. Apr. 26, 2000) (documents obtained in internal investigation protected by work-product privilege where investigation conducted under supervision of counsel after Plaintiff filed EEOC charge). Thus, documents arising from Bernard's conversations with Wells Fargo employees, and any other information that she may have gathered, are also protected under the work-product doctrine. See Kayata, 2000 WL , at *3. Although the work product privilege is not absolute, Farzan has not argued that he has a "substantial need" for information produced during Bernard's investigation. Id. Farzan has not demonstrated to the Court that he is unable, without undue hardship, to obtain the information he seeks by means other than through the Bernard deposition. Indeed, Defendants have provided him with more than 1,600 documents and produced multiple witnesses for depositions, at which Farzan himself admits that he has explored the basis for Wells Fargo's position statement. III. Conclusion Farzan's stated purpose in seeking to depose Bernard is to question her regarding her interviews ofother Wells Fargo employees to find out what formed the basis of Wells Fargo's position statement submitted to the EEOC. For the reasons set forth above, the oral communications between Bernard and the Wells Fargo employees are protected by attorney 4

5 Case 1:12-cv RJS-JLC Document 56 Filed 12/28/12 Page 5 of 6 client privilege and are not subject to disclosure. Moreover, it does not appear that Farzan wishes to depose Bernard regarding any other, non-privileged topics, nor could he, since Bernard had no other role in the case. 3 Under these circumstances, it would cause unnecessary time and expense for Bernard to be forced to appear for what would be a fruitless deposition. Thus, Defendants' request for a protective order under Rule 26(c) precluding Farzan from deposing Bernard is granted. Having granted the application for the protective order, the Court observes that it is wellsettled - and Wells Fargo acknowledges (see Wells Fargo Letter at 2) - that "[t]he [attorneyclient] privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney [or her agent]." Gucci Am., Inc., 271 F.R.D. at 70 (quoting Upjohn, 449 U.S. at 396). The disclosure of who Bernard interviewed as part ofher investigation does not reveal Wells Fargo's legal strategy, its analysis of Farzan's claims, or other protected information. Thus, while I grant the application to preclude Bernard's deposition from proceeding on attorney-client privilege and work-product grounds, to the extent they have not already done so, I direct Defendants to promptly identify the names of all ofthe individuals Bernard interviewed as part ofher investigation to Farzan. SO ORDERED. Dated: December 28, 2012 New York, New York U~ited States Magistrate Judge! 3 Farzan would be permitted to depose Be ard regarding any communications that she had with him. See Casella v. Hugh Q'Kane Electric Co., Inc., No. 00 Civ (LAK), 2000 WL , at *1 (S.D.N.Y. Nov. 2, 2000); Robinson, 187 F.R.D. at 146. However, it is undisputed that Farzan has not had any contact with Bernard. See Bernard Aff. ~ 6. 5

6 Case 1:12-cv RJS-JLC Document 56 Filed 12/28/12 Page 6 of 6 A Copy of this Memorandum Order has been sent to the following: Raymond Farzan P.O. Box 426 Middletown, NJ