No Attorney-Client Privilege For Risk Management Director

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By Susan Bokermann

Feb. 13 — The attorney-client privilege does not protect internal communications with a company's director of risk management despite her being an attorney and managing some company litigation, the U.S. District Court for the Eastern District of Pennsylvania held Feb. 9.

The court denied Unitek Global Services Inc.'s motion for a protective order, which claimed that the plaintiff, Carolyn Casey, was Unitek's attorney and was using communications protected by the attorney-client privilege to prosecute her employment discrimination claims.

Judge Lawrence F. Stengel held that although Casey led the risk management and safety departments at Unitek, they were separate from and not reportable to Unitek's general counsel.

Attorneys for both parties did not immediately respond to requests for comment.

Sex Discrimination, Equal Pay Act

Casey filed a Title VII sex discrimination and Equal Pay Act claim against her former employers, Unitek Global Services Inc. and Unitek USA LLC, in May 2014. She alleged that Unitek intentionally discriminated against her because of her gender by paying her less than her male counterparts and by replacing her with a male hired into a higher title with higher pay.

Unitek generally denied these allegations and in September 2014, filed its motion for a protective order. The court denied the motion, although it also reconsidered an earlier denial of the motion to seal and agreed to allow the defendants to withdraw certain confidential exhibits attached to their motion to prevent their public disclosure and substantial harm to the defendants.

Not Credible

The court noted that as director of risk management and vice president of risk and safety, Casey was responsible for maintaining adequate insurance for Unitek and its subsidiaries, analyzing risk, reducing loss and managing litigation arising from insurable claims.

The court found, however, that although Casey was an attorney, “Unitek points to no evidence that it sought Ms. Casey's legal advice or opinion.” Moreover, Casey's background does not include the practice of law, thus the court found that “[g]iven Ms. Casey's total lack of legal experience, it is simply not credible that Unitek hired Ms. Casey to be its attorney.”

Todd Presnell, a partner in the Nashville office of Bradley Arant Boult Cummings LLP, wrote in a blog post that “companies that have an attorney leading its internal risk-management department should pause and read” this decision.

According to Presnell, “The court’s analysis and conclusions should provoke companies to reassess whether it can claim privilege over a litigation manager’s communications. If the position is more akin to an insurance claims-adjuster, then it is less likely that a company can successfully invoke the corporate attorney–client privilege.”

To contact the reporter on this story: Susan Bokermann in Washington at sbokermann@bna.com

To contact the editor responsible for this story: Ryan Tuck at rtuck@bna.com

The opinion is available at http://www.bloomberglaw.com/public/document/Casey_v_Unitek_Global_Servs_Inc_ No_CIVIL_ACTION_142671_2015_ BL_33.