Authored by Mary Ahrens
In Winans, et al. v. Starbucks Corp., Case No. 08-3734 (S.D.N.Y. Dec. 15, 2010), a group of assistant store managers, brought a potential class action against Starbucks, claiming that they were wrongly left out of participating in tip pools. In defending the case, Starbucks asked certain employees to provide statements favorable to Starbucks, and Starbucks made a few of those employees available for deposition. During the depositions, Starbucks’ attorneys told the employees not to answer questions about the conversations they had had with Starbucks’ counsel or about signing the declarations. Plaintiffs asked the court for an order forcing the employees to answer those questions. Starbucks argued that the communications were protected by the attorney-client privilege.
The court ruled in favor of Starbucks and found that the communications between Starbucks and its employees were protected by the attorney-client privilege. The court explained that a corporation must question its employees to gather the information it needs in order to seek legal advice in defending a lawsuit. In such cases, the attorney-client privilege belongs to the corporation and not to the employees. Even if a class were certified at some point in the future, only the corporation, and not its employees, could waive the privilege. The corporation therefore can reasonably expect that its communications with its employees would be confidential. Therefore, the court ruled that the communications were protected by the attorney-client privilege and that the employees were not allowed to reveal any of their communications with Starbucks’ counsel, unless Starbucks gave them permission to do so.