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Garcia v. Completely Kids

United States District Court, D. Nebraska

January 15, 2016

SHANNAN L. GARCIA, Plaintiff,
v.
COMPLETELY KIDS, Defendant.

MEMORANDUM AND ORDER

Cheryl R. Zwart United States Magistrate Judge

This matter is before the court on Defendant’s Motion for Protective Order, (Filing No. 27). For the reasons stated below, Defendant’s Motion will be granted.

STATEMENT OF FACTS

On October 5, 2012, Plaintiff Shannan Garcia was terminated from her employment with Defendant Completely Kids. Prior to terminating Plaintiff, Defendant consulted with its legal counsel, Margaret Hershiser (“Hershiser”) who is Defense counsel in the current litigation.

The week preceding Plaintiff’s termination, Plaintiff’s supervisor and Director of Programs, Carla O’Donnell-Rizzo (“Rizzo”), received a complaint from a staff member regarding Plaintiff’s behavior. (Filing No. 31-3 at CM/ECF p. 11). Rizzo informed the executive director of Completely Kids, Penny Parker (“Parker”), of the complaint and Parker instructed Rizzo to consult with legal counsel. (Filing No. 31-3 at CM/ECF p. 11). The decision to consult legal counsel at Completely Kids was made by Parker. (Filing No. 29-2 at CM/ECF p. 7). Parker decided legal counsel should be consulted to ensure Completely Kids followed all the appropriate steps in case Plaintiff was to be terminated. (Filing No. 29-2 at CM/ECF pp. 7-8). Parker testified Plaintiff’s medical condition had no effect on her decision to consult legal counsel. (Filing No. 29-3 at CM/ECF p. 8).

Rizzo continued to investigate the complaint, and first contacted counsel regarding Plaintiff’s possible termination during the week the termination occurred. (Filing No. 31-3 at CM/ECF pp. 11-12 & 23). While Rizzo recommended Plaintiff’s termination, the ultimate decision to terminate Plaintiff was made by Parker. (Filing No. 31-3 at CM/ECF p. 10; Filing No. 31-4 at CM/ECF pp. 7-8).

On January 13, 2014, Plaintiff filed her Complaint alleging claims of Family and Medical Leave Act retaliation and Americans with Disabilities Act discrimination and retaliation. In its Answer, Defendant asserted the good faith affirmative defense, stating “[a]ll of Completely Kids’ actions with respect to Plaintiff were made in good faith.” (Filing No. 7 at CM/ECF p. 9).

Plaintiff deposed Rizzo. In her deposition, Rizzo alluded to her consultation with counsel in response to several questions. She mentioned counsel twice when she was asked about the content of her meeting with Parker the day before Plaintiff’s termination, saying she “updated [Parker] on my advice from counsel[, ]” (Filing No. 31-3 at CM/ECF p. 11) and “I told [Parker] . . . what legal counsel told me to do[.]” (Filing No. 31-3 at CM/ECF p. 23). Rizzo also mentioned counsel at several points when she was questioned regarding the supervisory notes of Mr. Heaston, Plaintiff’s direct supervisor, and whether counsel was ever sent the notes.[1] (Filing No. 31-3 at CM/ECF pp. 6, 7, 8, 11, & 22-23)

During Defendant’s Rule 30(b)(6) deposition, Plaintiff asked Parker what facts support Completely Kid’s good faith defense. Parker responded “I believe we were accommodating Ms. Garcia. We did everything to support her and what she was trying to do to recover from her illness. And to me that constitutes good faith.” (Filing No. 31-4 at CM/ECF p. 11). Plaintiff next asked if “part of the bases . . . with regard to your good-faith defense is that you consulted counsel with respect to her termination?” Parker responded “yes.” (Filing No. 31-4 at CM/ECF p. 12).[2] Plaintiff’s counsel attempted to advance this line of questioning by asking specific questions regarding the type of legal advice received and relied upon by the defendant. (Filing No. 31-4 at CM/ECF p. 12). Defense counsel objected and after a discussion between counsel, defense counsel ordered Parker not to answer the questions concerning the advice sought and received from counsel. (Filing No. 31-4 at CM/ECF pp. 12-13). The parties agreed to defer their discussion of such matters.

In November of 2015, the topic was again approached when Plaintiff expressed a desire to depose Hershiser and to obtain copies of communications between Completely Kid’s representatives and Koley Jessen P.C., L.L.O. (“Koley Jessen”). Plaintiff forwarded the proposed subpoena to defense counsel on November 16, 2015, to facilitate discussions prior to serving it. Within the proposed subpoena, Plaintiff seeks

1. All emails, text messages, letters, notes, memoranda, voicemails and any other documents that contain or mention or relate to any advice or recommendations you gave Completely Kids, Penny Parker, Carla Rizzo, or Bill Heaston regarding Shannan Garcia’s requests for accommodation, requests for medical leave/FMLA leave, request to attend a conference in California in April of 2012 despite her medical condition; complaints of disability discrimination . . . and/or Shannan Garcia’s performance, discipline or termination or whether Completely Kids should counsel, discipline or terminate Shannan Garcia. Said request is limited to dates on and/or prior to Ms. Garcia’s termination on October 5, 2012. and
2. All emails, text messages, letters, notes, memoranda voice mails from representatives of Completely Kids, and other documents on which you based or memorialized your understanding of the basis for Ms. Garcia’s request for accommodation, requests for medical leave/FMLA leave, request to attend a conference in California in April of 2012 despite her medical condition; complaints of disability discrimination . . . and/or Ms. Garcia’s performance or the basis for discipline/counseling/termination. Said request is limited to dates on and/or prior to Ms. Garcia’s termination on October 5, 2012.

(Filing No. 29-2 at CM/ECF p. 4). The parties thereafter held a discovery conference with the court on December 15, 2015. The court advised the parties to file formal motions for the court to consider. Defendant filed this motion arguing that the information sought is protected by the attorney-client privilege which has not been waived. Plaintiff argues the defendant impliedly waived any ...


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