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Mark Willnerd, An Individual v. Sybase

December 22, 2010


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge



Before the Court is Plaintiff Mark Willnerd's Motion to Determine Existence of Privilege, Motion for In Camera Review, and Motion to Compel (Dkt. 62). Willnerd asks the Court to determine whether a particular email bates numbered SYBASE006665 is protected by the attorney-client privilege. Willnerd claims that it is not.

Willnerd further contends that Defendant Sybase Inc.'s assertion of privilege with respect to the 6665 email raises concerns that Sybase has improperly claimed that other documents listed on its privilege log are privileged when they are not. Alternatively, Willnerd contends that Sybase has selectively disclosed certain emails labeled as privileged to gain a tactical advantage, and therefore their disclosure "constitutes subject-matter waiver of all communications with the Curiale firm." Pl.'s Opening Br. at 2, Dkt. 62. Based on this arguments, Willnerd requests that the Court "conduct an in camera review to determine whether all 215 communications identified on Sybase's privilege log are either (1) not privileged; or (2) should be disclosed because of Sybase's selective disclosure of other (favorable) communications on the same subject matter." Pl.'s Reply Brief at 168, Dkt. 94.

For the reasons set forth below, the Court finds that the 6665 email is privileged. In addition, the Court concludes that Sybase did not selectively disclosed certain privileged emails to gain a tactical advantage. Therefore, the Court will deny Willnerd's motions.


Defendant Sybase employed Plaintiff Mark Willnerd until his termination on July 17, 2008. Prior to terminating Willnerd, Sybase contacted its outside counsel, the employment and labor law firm Curiale Hirschfeld Kraemer LLP, for assistance in investigating two complaints made against Willnerd. For the past ten years, the Curiale firm has represented Sybase in employment litigation, provided Sybase with advice and counsel with respect to labor and employment issues, and conducted fact-finding workplace investigations. In this case, Richard J. Curiale, the firm's managing partner and Sybase's primary contact with the firm, asked his colleague, John F. Baum, to contact Sybase and conduct an investigation. Curiale Aff. ¶ 3.

The first incident Baum investigated involved a formal written complaint of retaliation made by Brad Schmidt, a senior manager of Development and Engineering and Willnerd's direct report. Schmidt accused Willnerd of intentionally reassigning him to a different job position as part of a reorganization of the Boise office to force Schmidt to quit. Baum Aff. ¶ 2, Dkt. 84.

The second incident investigated related to Sybase Human Resource Manager Stefanie Thiel's complaint that Willnerd came into her office, unbuckled his belt, and held out the waistband of his pants to show that he had lost weight. Thiel had mentioned the incident to her supervisor, Karen Chapin, a senior director of Human Resources. Chapin discussed the incident with Willnerd, and she instructed him not to speak with Thiel about it. Willnerd, ignoring Chapin's admonishment, approached Thiel about her complaint. Although Thiel denied making a sexual harassment claim, she reported to Chapin that Willnerd made her feel uncomfortable by confronting her. Id. ¶ 3.

Baum began his investigation into these incidents on May 16, 2008. He conducted a series of interviews of Sybase employees and then prepared a written investigation reportcontaining a summary of his factual findings. Id. ¶ 5. On May 27, 2008, Baum completed and disseminated the report to Nita White-Ivy, Sybase's Vice President of Worldwide Human Resources. As a result of his investigation, Baum concluded that Willnerd had not engaged in any unlawful conduct, but that he had exhibited bad judgment in unbuckling his belt in the presence of Thiel and in rolling out the reorganization. Id. ¶7.

The May 27, 2008 dissemination of the Baum report marked the end of Baum's investigation. According to Sybase, neither Baum nor any other Curiale attorney continued to serve in a fact-finding role with respect to Willnerd's conduct or management.

Sybase's assessment of Willnerd as a manager continued, however. Id. ¶¶ 8-10. Baum's investigation results prompted Sybase to conduct a "360 Review" of Willnerd's management skills with the assistance of an outside consultant. Also, Sybase conducted an internal investigation into whether Willnerd permitted Johannes Alberti, a foreign national, to work in the U.S. prior to obtaining his L-l visa in violation of U.S. immigration law, and whether Willnerd had approved unauthorized expenses for Alberti. Chapin Aff. ¶ 8 & Ex. A, Dkt. 83.

The results of the Baum investigation, the 360 Review, and the internal investigation all served as a basis to terminate Willnerd in July 2008. Willnerd alleges that Sybase initiated the 360 Review and then terminated him in retaliation for his participation in the investigation of the so-called "belt buckle" incident.

Baum continued to provide legal advice to Sybase regarding Willnerd's employment after he completed his investigation on May 27, 2008 and throughout the 360 Review and the internal investigation. He states that he believed all of the advice and communications he exchanged with Sybase following the completion of the investigation were privileged. Baum Aff. ΒΆ 10.It was during this time -- after Baum ...

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