Privilege Won’t Shield Paula Deen’s Ex-Lawyer

     SAVANNAH, Ga. (CN) – Paula Deen’s former attorney will have to testify in the sexual harassment and racial discrimination lawsuit the celebrity chef faces, a federal judge ruled.
     Former employee Lisa Jackson sued Deen and her brother Bubba Hiers last year, alleging Hiers had subjected her to sexual harassment and abusive treatment, and discriminated against black employees.
     Jackson claimed that, during the five years she worked under Hiers’ supervision, she had complained to various levels of management, including Deen and attorney James Gerard who had provided legal services to Deen and her companies. No action was taken, however, to remedy or stop Hiers’ alleged discriminatory and harassing conduct, according to Jackson’s amended complaint.
     On May 8, a federal magistrate in Georgia ordered Deen to make Gerard available for a new deposition relating to previously privileged information. The judge concluded that the attorney-client privilege could not apply to Gerard’s actions and communications while investigating internal complaints or advising management in connection with such complaints.
     Gerard could also testify about complaints four Equal Employment Opportunity Commission claimants had allegedly directed to Jackson in 2009, as well as any meetings with Jackson and other management following those complaints, according to the May 8 order.
     That order had also denied a request from Hiers to redact references in certain filings to his past treatment for drug and alcohol addiction.
     U.S. District Judge William Moore Jr. threw out Hiers’ objections Friday, agreeing that this information was made available in Hiers’ deposition, and is likely to be explored at trial, making redaction pointless.
     About a week earlier, Moore had also rejected Deen’s objections to the May 8 order.
     Though Deen said Gerard had acted only as outside counsel, rendering all communications privileged, Moore found that Gerard can testify on matters he handled in his human resources role.
     “Plaintiff may depose Mr. Gerard regarding the following areas: (1) whether plaintiff complained to him of harassment; (2) whether defendants had a reasonable system in place to handle and remediate any such complaints; and (3) Mr. Gerard’s actions relating to any investigation of discrimination complaints not conducted directly for or in anticipation of EEOC administrative action or litigation,” the July 25 ruling states.
     Moore concluded that the magistrate’s order was neither erroneous nor contrary to law.
     Since Deen and her co-defendants said they intended to rely on Gerard’s testimony to help their case, they cannot use the attorney-client privilege to shield disclosure of relevant, less beneficial testimony, according to Moore’s ruling.
     “Regardless, plaintiff should be particularly careful not to exceed the magistrate judge’s order respecting the scope of what information is discoverable due to defendant’s waiver of the attorney-client privilege,” Moore wrote.
     “It appears Mr. Gerard’s testimony may be used to show both that plaintiff never complained of any harassment, and that defendants had a reasonable system in place to handle and remediate any such complaints. Therefore, plaintiff should restrict any inquiry to information related to these areas.”
     Gerard’s legal opinions related to the lawsuit against Deen or to Jackson’s EEOC administrative action are excluded from discovery, according to the ruling.
     Moore stressed he was not granting “blanket admission” to the resulting evidence at trial, and said all evidence will be judged according to procedural rules.
     Jackson’s attorneys must depose Gerard no later than Aug. 19, the ruling states.

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