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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

HAROLD BLACK,

Plaintiff,

 v.

JOHN E. POTTER, Postmaster General,

Defendant. /

No. C 08-01344 SI

ORDER DENYING PLAINTIFF’S

REQUEST FOR A PROTECTIVE

ORDER

[Docket No. 53]

Plaintiff has filed a request for a protective order preventing defendant from deposing plaintiff’s

union representative, Mr. Williamson, on the ground Mr. Williamson’s communications with plaintiff

in connection with his representation of plaintiff during the EEOC process are subject to the attorneyclient privilege. Defendant counters that the federal common law of privileges does not extend

protection to communications with a lay union representative.

DISCUSSION

Because plaintiff’s complaint alleges violations of Title VII, federal privilege law governs these

proceedings, including discovery. United States v. Zolin, 491 U.S. 554, 562 (1989). Under Federal Rule

of Evidence 501, determinations of privilege under federal law are “governed by the principles of the

common law as they may be interpreted by the courts of the United States in the light of reason and

experience.” Rule 501 provides courts with “the flexibility to develop rules of privilege on a

case-by-case basis.” Trammel v. United States, 445 U.S. 40, 47 (1980). 

Federal courts have reach differing conclusions with respect to whether communications between

an individual and his or her lay representative are privileged under federal common law. The majority

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of courts have held that such communications are not privileged. For example, in In re Grand Jury

Subpoenas, 995 F. Supp. 332 (E.D.N.Y.1998), the Eastern District of New York held that no privilege

attached to communications between police officers and the union representatives who advised them

before the union retained counsel to represent the officers during a grand jury investigation. The court

noted that the officers had failed to establish that the communications were actually made in confidence,

“that total confidentiality was essential to the maintenance of [the] relationship” between the officers

and their representatives, or “that the union relationship is so highly valued by an ordered society that

its confidences warrant protection even at the cost of losing evidence important to the administration

of justice.” Id. at 334-35. Other courts have reached similar conclusions. See, e.g., Nemecek v. Bd. of

Governors of the Univ. of N.C., No. 98-0062, 2000 WL 33672978 (E.D.N.C. Sep. 27, 2000); Walker v.

Huie, 142 F.R.D. 497 (D. Utah 1992).

In Woods v. N.J. Dep’t of Educ., 858 F. Supp. 51 (D.N.J. 1993), however, the District of New

Jersey applied the attorney-client privilege to communications between a lay advocate and the parents

of a disabled child in connection with an administrative hearing under the IDEA. The court’s holding

was premised upon the fact that state law expressly permitted appearance by lay advocates, that such

advocates were bound by the Rules of Professional Conduct, and that the traditional purposes of the

privilege, including “encourag[ing] uninhibited discourse” between clients and attorneys, were furthered

by protecting the communications at issue. Id. at 55. The court in Woods cited a California case now

relied on by plaintiff, Welfare Rights Org. v. Crisan, 661 P.2d 1073, 1076-77 (Cal. 1983), in which the

California Supreme Court determined that a state statute expressly providing the right to lay

representation in welfare benefits hearing implied a legislative intent to extend protection to

communications between welfare claimants and their lay representative.

As the above citations make clear, courts that have protected communications between client and

lay advocate have emphasized the statutory or regulatory authority for the lay representation and the fact

that extending protection would further the traditional purposes of the privilege. Here, EEOC

regulations plainly provide a right to lay representation. See 29 C.F.R. § 1614.605(a) (“At any stage in

the processing of a complaint, . . . the complainant shall have the right to be accompanied, represented,

and advised by a representative of complainant’s choice.”). The regulations also provide for

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disqualification of a lay representative in case of conflict of interest. Id. § 1614.605©. Moreover, in

the Court’s view, protecting the confidentiality of communications between an aggrieved employee and

the union representative who is acting as the employee’s advocate in EEOC proceedings furthers the

traditional rationales underlying the attorney-client privilege. Thus, in principle, the privilege may apply

to protect specific communications between plaintiff and Mr. Williamson. However, any privilege does

not extend to communications plaintiff could not have intended to keep confidential. The primary topic

on which defendant states it intends to depose Mr. Williamson concerns instructions plaintiff may have

given Mr. Williamson to sign an agreement terminating or transferring plaintiff from his employment

with defendant. If plaintiff directed Mr. Williamson to sign a transfer agreement on his behalf, he could

not have intended for that communication to be kept confidential, and neither the communication nor

the resulting documents would be protected by the privilege.

Accordingly, the Court hereby DENIES plaintiff’s motion for a protective order entirely

precluding defendant from deposing Mr. Williamson or obtaining documents created in the course of

his EEO representation of plaintiff. However, if at the deposition defendant attempts to question Mr.

Williamson about communications that were made in confidence, intended to be kept confidential, and

otherwise meet the strictures of the attorney-client privilege, counsel may properly object and instruct

Mr. Williamson not to answer.

IT IS SO ORDERED.

Dated: February 6, 2010 

SUSAN ILLSTON

United States District Judge

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