In Coker v. Goldberg & Assocs. PC, No. 21-CV-1803 (JLR) (BCM), (S.D.N.Y. Jan. 24, 2024), New York Magistrate Judge Barbara Moses found that privilege was waived on WhatsApp audio files for defendants’ failure to create a privilege log for those files and ordered the defendant to produce them on an attorneys’-eyes-only basis. She also ruled that “defendants are precluded from using or relying on any previously undisclosed WhatsApp communications to support their good-faith defense.”

Case Background

This case involved claims by the plaintiff that she was not paid for overtime hours and fired when she asked for overtime whereas the defendant contended that plaintiff was an exempt employee and not entitled to overtime pay. During the discovery period, plaintiff filed a series of letter-applications to compel discovery, complaining – repeatedly – that defendants were dragging their feet and that their responses to plaintiff’s document requests and interrogatories were insufficient in various ways. In response, defendants assured the Court – repeatedly – that they were working on the outstanding discovery items and would comply with plaintiff’s demands as soon as they were able to gather the requested materials.

On March 27, 2023, the Court ordered defendants to produce “the items they agreed to produce forthwith, but no later than April 7, 2023.” Two weeks later, during a pretrial conference on April 10th, the Court ordered defendants to “produce all outstanding discovery no later than April 13, 2023,” or “face possible sanctions.” On April 12th, defendants asked for an extension of time, until April 17th, to complete their production, and on April 13th, the Court granted the motion.

However, on April 28th, plaintiff filed a motion for sanctions, asserting that, although defendants made a supplemental production in response to the 4/13/23 Order, they never turned over: (i) certain audio files exchanged between Coker and Goldberg via WhatsApp, and (ii) “information which could have [a] bearing on” defendants’ good-faith defense, including WhatsApp messages that may have been exchanged “between and amongst HR, exec team and/or attorney re: exemption.” Defendants’ conduct, according to plaintiff, was out of compliance with “several of Rule 11(b)’s provisions,” including, for example, the requirement that their factual denials be “warranted on the evidence or, if specifically so identified, [ ] reasonably based on belief or a lack of information” and she asked for a default judgment sanction.

Judge’s Ruling

Judge Moses stated: “Rule 11(c)(2)…requires the party seeking sanctions to ‘describe the specific conduct that allegedly violated Rule 11(b)’ in its moving papers and give the offending party 21 days, before filing the motion, to withdraw ‘the challenged paper, claim, defense, contention or denial.’… Here, not only does plaintiff’s motion pertain to material expressly excluded by Rule 11(d), but in filing her motion, plaintiff failed to comply with Rule 11(c)(2)’s safe harbor provision. Thus, to the extent she moves under Rule 11, no relief can be granted… Although plaintiff does not identify any other rule or statute under which she seeks sanctions, the Court construes her motion as made under Rule 37(b)(2), which governs sanctions for ‘not obeying a discovery order.’”

Judge Moses found that privilege was waived on WhatsApp audio files, stating: “In this case, although the 4/13/23 Order did not explicitly direct defendants to produce the audio files underlying their WhatsApp messages, it did direct them to ‘complete all discovery.’…A party has not completed all discovery if it has withheld responsive documents on privilege grounds but has failed to produce a privilege log… Defendants admit in their opposition letter that they withheld portions of the WhatsApp communications between plaintiff and Goldberg (namely, certain audio files) because they are ‘protected by attorney-client privilege,’…but they never supported their privilege claim with a log, as required, and they do not argue that they were somehow unable to do so.” While finding that the plaintiff’s request for dispositive sanctions “would be wholly disproportionate to the sanctionable misconduct”, she stated: “After weighing the relevant factors, I conclude that defendants cannot maintain their privilege defense as to the remaining WhatsApp audio files. Rather, they will be deemed to have waived their claim of privilege, and therefore must now produce the files… However, because those files may well contain sensitive information about the Firm’s clients and their immigration cases, the audio files shall be produced on an attorneys’-eyes-only basis.”

Regarding the WhatsApp files, Judge Moses stated: “The possibility that defendants have withheld discoverable documents is not a sufficient foundation for the dispositive sanctions that plaintiff requests. However, given that good faith is an affirmative defense, as to which defendants bear the burden of proof,…a preclusion order would be appropriate, so as to prevent defendants from benefitting from any failure to produce relevant evidence timely, and to protect plaintiff from unfair surprise. Consequently, defendants will be precluded from ‘us[ing] that information … to supply evidence’ at trial.”

So, what do you think? Are you surprised that the Court found that privilege was waived on WhatsApp audio files? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. Check out Kelly Twigger’s discussion of the case here!

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