Meeting Recordings Are Not Privileged Material

KNOXVILLE (CN) - Surreptitious recordings of a meeting between potential class action plaintiffs and their counsel are not protected by attorney-client privilege, a federal judge ruled.

Jesse and Michael Pierce, sales reps at resorts owned by defendant Wyndham Vacation Resorts Inc., hired Dickson Wright PLLC to represent them and others in a Fair Labor Standards Act lawsuit against the company.

On October 17, 2013, counsel from Dickson Wright conducted a meeting with more than forty other Wyndham sales reps to see if they would like to join the litigation. Unbeknownst to attendees at the time, someone in the room recorded the meeting, and that recording is now in the possession of Wyndham attorneys, who say they have not yet listened to it.

One recording captures a Dickson Wright attorney is head asking "that any mole or person recording the meeting leave the room" and later joking "that counsel will later find any such person and 'and beat you to within an inch of your life'," the ruling says.

Another attorney at the meeting also says, "This is an attorney-client meeting; everything we say here is confidential."

But a federal judge in Knoxville, Tenn., disagreed this week, denying a motion to compel Wyndham to produce the audio recordings.

"The majority of the audible portions of the recording are plaintiffs' counsel discussing their own qualifications, the lawsuit generally, and the opt-in procedure under the FLSA," wrote U.S. Magistrate Judge Clifford Shirley, Jr. "The recording does not include any questions from the attendees with regard to any of counsel's presentation. The only feedback from the attendees is applause, laughter, and an occasional wisecrack. The conversations amongst the attendees themselves certainly cannot be considered communications by the clients to the attorneys for the purposes of obtaining legal advice."

Because the recordings are not protected under attorney-client privilege, Wyndham is allowed to listen to them, the judge ruled.

The court also denied Wyndham's motion to protect the identity of the person who recorded the meeting because retaliation is unlikely, and the plaintiffs' counsel already has that person's information as both parties believe he or she was an opt-in plaintiff at the meeting.

"The court finds that plaintiffs' counsel's off-the-cuff comment about tracking down any person acting as a mole at the meeting was a joke, and the court has no reason to expect anything but the most professional behavior from plaintiffs' counsel," Shirley wrote.

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