Employment Law

EEOC v. BDO USA, L.L.P. — Study Notes

EEOC v. BDO USA, L.L.P., 856 F.3d 356 (5th Cir. 2017)

Study notes for EEOC v. BDO USA, L.L.P.: professor notes, cold call prep, exam angles, and memory aids.

A claim of attorney-client privilege must be supported by a specific and detailed justification to be upheld in the context of an EEOC investigation.
Professor Notes

In this case, the Fifth Circuit addressed the issue of attorney-client privilege in the context of employment discrimination investigations initiated by the EEOC. The Court emphasized that while attorney-client privilege is a critical protection for clients seeking legal advice, it cannot be claimed indiscriminately, especially when a party is in possession of documents potentially relevant to discrimination complaints. The ruling underscores the necessity for a specific and detailed rationale when claiming privilege, which the court found was lacking by BDO USA, L.L.P. This case illustrates the balance between safeguarding privileged communications and ensuring accountability in employment practices.

Cold Call Prep
  1. 1What are the basic facts of the EEOC's investigation into BDO USA?
  2. 2What did BDO USA cite as the basis for its attorney-client privilege?
  3. 3How did the Fifth Circuit rule on BDO's claim of attorney-client privilege?
  4. 4What is the significance of document-specific justification in privilege claims?
  5. 5How does this case impact EEOC investigations in the context of attorney-client communications?
  6. 6What are the broader implications for employer compliance with anti-discrimination laws in light of this ruling?
  7. 7Can you explain the legal standard for supporting a claim of attorney-client privilege?
Mnemonic Device

Privilege requires proof (specificity) to protect communications.

Distinguish From
CaseDistinction
Upjohn Co. v. United StatesIn Upjohn, the court upheld the attorney-client privilege because there was sufficient evidence to show that communications were made for the purpose of seeking legal advice.
In re Grand Jury SubpoenaIn this case, the court recognized the attorney-client privilege but emphasized that it must not be used to shield communications that are not directly related to legal advice.
Kirkland v. New York State Dept. of Corr. Serv.Kirkland involved an explicit waiver of privilege concerning documents by the client, contrasting with BDO's vague claims which were not well substantiated.
Policy Arguments

For the Rule

The rule promotes transparency and accountability in workplace practices, ensuring that discrimination claims can be investigated thoroughly.

Against the Rule

The rule may hinder frank communications between clients and attorneys, potentially impacting the quality of legal counsel sought by employers.

Class Discussion Points
  • How should organizations balance the need for legal confidentiality with compliance obligations?
  • What are the implications of this ruling on other organizations facing EEOC investigations?
  • How could this ruling affect the employer-employee relationship, particularly for whistleblowers or complainants?
  • In what ways might this case influence future litigation involving privilege in employment law?
  • What training might employers need to implement to avoid similar privilege disputes in the future?
Exam Angle

Exams may explore how attorney-client privilege intersect with regulatory investigations, focusing on the need for specificity in privilege claims.

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