Free Statement - District Court of Arizona - Arizona

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Telephone: (602) 852-5582 [email protected]

Lydia A. Jones - 017178 ROGERS & THEOBALD LLP The Camelback Esplanade, Suite 850 2425 East Camelback Road Phoenix, Arizona 85016

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA KAYE HUTTON, as an individual and a representative of a class of others similarly situated, Plaintiff, vs. BANK OF AMERICA, N.A., Defendant. No. CV2003-2262-PHX-ROS

JOINT STATEMENT RE: IN CAMERA INSPECTION OF THE NOTES OF BARBARA DAVIS, ESQ.

Pursuant to the Court's Order issued during the April 5, 2005 hearing and in the subsequent April 13, 2006 Minute Entry, Plaintiff Kaye Hutton, as an individual and a representative of a class of others similarly situated, and Defendant Bank of America, N.A., hereby submit to the Court a Joint Statement Re: In Camera Inspection of the Notes of Barbara Davis, Esq. The purpose of this Joint Statement is to assist the Court in its evaluation of the context under which the notes were prepared and, as such, whether the notes of Ms. Davis are discoverable by plaintiff. Where the parties do not agree, a separate Plaintiff's Statement and Defendant's Statement have been set forth below.

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Joint Statement On April 19, 2006, the defendant Bank delivered to the Court under seal and for an in camera inspection the hand-written notes of now deceased attorney Barbara Davis and the Declaration of Linda Edwards. Ms. Edwards' Declaration was provided to Plaintiff's counsel. The notes were taken by Ms. Davis during a one-hour May 31, 2000 teleconference in which defendant's then paid consultant/expert, Lloyd Aubry, orally communicated the results of his study and observations regarding the exempt status and classification of client managers working in Seattle, Washington. The following individuals participated in the May 31, 2000 teleconference: (i) Jay Price, in-house counsel for the Bank; (ii) Lloyd Aubry, the paid consultant/expert; (iii) Linda Edwards, outside counsel with the law firm of Paul, Hastings, Janofsky and Walker defending unpaid overtime cases filed against the Bank in California; and (iv) Barbara Davis, also outside counsel with Paul Hastings and defending the Bank on those same cases, and the author of the notes at issue. Neither Mr. Price nor Ms. Edwards prepared any notes during or after the call. Mr. Aubry conducted his study in May 2000 at the request of Jay Price. It was the Bank's (through either Mr. Price or Ms. Edwards), not Mr. Aubry's, idea and decision to have Mr. Aubry conduct his study in Seattle, Washington, as opposed to California. The purpose of the May 31, 2000 call was for Mr. Aubry to report his observations and findings relating to his study. That communication occurred during the May 31, 2000 telephone call. The call lasted one hour and Ms. Davis took four (4) pages of notes. After the teleconference, Mr. Aubry was not asked to memorialize his thoughts and conclusions, nor was he asked to perform any further services in connection with his study or his conclusions.

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The Bank reclassified the client manager position nationwide from exempt to non-exempt status in March 2002. Plaintiff's Statement Plaintiff's Factual Statement Relevant to the In Camera Inspection As stated above, apparently neither of the other two lawyers for the Bank (Mr. Price and Ms. Edwards) took notes during the May 2000 telephone call. Mr. Aubry, the paid expert/consultant did took make a few notations during the call, but he was not serving as the Bank's attorney and as the attached Exhibit A demonstrates, the notes are of little use. [See Aubry Notes attached as Ex. A]. Also as stated above. Mr. Aubry conducted his study in May 2000 at the request of Jay Price, and it was the Bank's (through either Mr. Price or Ms. Edwards), not Mr. Aubry's, idea and decision to have Mr. Aubry conduct his study in Seattle, Washington, as opposed to California, for example. In addition, it was also the Bank that decided how many and which client managers would be interviewed by Mr. Aubry. Further, upon information and belief, the primary purpose of the May 31, 2000 call was for Mr. Aubry to report his factual observations and findings from his review of Bank documents and his study of the exempt status of client managers. Mr. Aubry delivered his factual observations and findings orally and only once. As the Court is aware, that communication occurred during the May 31, 2000 telephone call and during that call, which lasted one hour, Ms. Davis took four (4) pages of notes. It also appears that most if not all of the conversation during the telephone call was Mr. Aubry delivering his factual observations and his conclusions, which are set forth below in more detail. He has no recollection of Mr. Price. Ms. Edwards, or Ms. Davis participating in the call in any substantive way.

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The Bank has admitted that Ms Davis' notes reflect the communications made during the 2000 teleconference, as well as Ms. Davis' thought impressions.1 And although the Bank claims there are no quotations ­ it's fairly clear that Mr. Aubry did most if not all of the talking in providing his report, so plaintiff expects that the notes reflect the factually recording of what Mr. Aubry was telling the Bank's attorneys. As stated above, after the teleconference, Mr. Aubry was not asked to memorialize his thoughts and conclusions, nor was he asked to perform any further services in connection with his study or his conclusions. However, Mr. Aubry's study was apparently discussed in June 2000 correspondence from Ms. Edwards to Jay Price, but that correspondence has been withheld from the plaintiff in this case on the grounds of attorney-client privilege. From Mr. Aubry's testimony provided in this case nearly six (6) years after the May 2000 teleconference, Plaintiff is aware that during the call the Bank was told that: (a) it might want to reexamine the exempt/nonexempt status of the position2; (b) it might want to make some changes to the exempt status3; (c) that the client managers might or might not be exempt; (d) that it was an "open question" as to whether the client managers were or were not exempt4 5; and

See Defendant's Response to Plaintiff's Request for Production of Documents, Request Number 1 (stating "The impressions of Mr. Aubry were a subject of a later meeting attended by Barbara Davis, Esq., Paul Hastings, Ms. Edwards, Mr. Price and Mr. Aubry. Ms Davis took notes reflecting their communications and her thought impressions."). 2 See Aubry Dec. para. 8 ("I told the Bank ... that might want to reexamine the exempt/nonexempt status of the position."). 3 See Aubry Dec. para. 15 ("I also told the attorneys in this conversation that the Bank might want to monitor performance of the position more closely and perhaps even make some changes to either the position itself or the exempt status") (emphasis added); see also Aubry Depo. page 141, lines 19-24 affirming that the entirely of Aubry Dec. para. 15 is true. 4 Mr. Aubry testified that while the client manager position per the Bank's description may not necessarily be a nonexempt position, "but ... they (the client managers) were performing in a

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nonexempt way. And then depending upon other factors, they (the client managers) might or might not be exempt or nonexempt." Q: So it was an open question? A: Correct. See Aubry Depo. p. 125, lines 20-25; p 126, lines 1-9. 5 Stated another way by Mr. Aubry in his deposition, "I was telling them that some of the people were potentially doing this in a nonexempt way and, therefore, they needed to think about the position itself. And there were a number of different options that they could take, but this was ­ these were experienced labor counsel and they needed to figure out how they wanted to address it. So I didn't make a specific recommendation as to what I thought they ought to do because there are a lot of different things one could do " See Aubry Depo. p. 127, lines 1-11. (emphasis added)] 6 See Aubry Depo. page 135, lines 1-20; page 136, lines 13-15; page 137 lines 1-2. See Defendant's Third Supplemental Response to Plaintiff's Request for Production of Documents, Request Number 4 (producing Mr. Aubry's file that formed the basis of his findings and conclusions communicated in May 2000 as the response to plaintiff's request for documents that refer or relate to the Bank's decision to reclassify client managers as non-exempt in 2002).
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(e) that even some of the more experienced client managers may have been performing the job in a nonexempt way; specifically Mr. Aubry testified that they "might be" and that they "appeared to be" nonexempt.6 As the Court is aware, the Bank reclassified the client manager position nationwide from exempt to non-exempt status in March 2002. The Bank admits that it based this reclassification decision on Mr. Aubry's study and findings conducted and communicated to the Bank nearly two years earlier in May 2000.7 As such, the Court's in camera inspection of the Ms. Davis' notes will reveal; (1) what was factually stated by Mr. Aubry; (2) any thoughts or comments on the significance of those facts; (3) precisely what the Bank's attorneys (and consequently the Bank itself) knew, or should have known, in 2000 when they were given Mr. Aubry's findings, and consequently on what information the Bank relied in making its decision to classify client managers as non-exempt; and (4) the elements of any "to do" list or action plan, including perhaps next steps in terms of who should be given the information provided by Mr. Aubry and whether the Bank needs to act on that information in any way.

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Plaintiff also anticipates that the Court's in camera inspection will demonstrate to the Court that the Bank's attorneys, and consequently the Defendant, were on notice that there was the possibility ­ if not a near certain probability -- that the client manager position was misclassified as exempt and that the Bank's attorneys (and again consequently the Bank itself) knew, or should have known, that further inquiry may be required or at least an action plan to address Mr. Aubry's findings ­ that of that the Bank may be violating the FLSA by misclassifying the client managers are exempt. Further, since there is no evidence of any action by the Bank to address the possibility of misclassification from 2000 through 2002, the notes will support plaintiff's argument that it was unreasonable for the Bank to have essentially ignored Mr. Aubry's findings and conclusions until nearly two years later when it, admittedly relying on such findings and conclusions, reclassified the client managers as nonexempt in March 2002, and not until after the California litigation being defended by Ms. Edwards and Ms. Davis was settled for an amount in excess of $20 million. Although Mr. Aubry's testimony nearly six years after the teleconference is helpful in that we know generally the gist of his findings, what is missing from his testimony, what he cannot provide testimony on, and what crucial to plaintiff's case, is evidence of what the Bank's attorneys knew or should have known. That exists only in Ms. Davis' notes since those notes are the only contemporaneous recording of what counsel for the Bank heard and understood Mr. Aubry to be communicating with respect to the exempt status of the client manager position. Plaintiff's Statement Regarding Work Product and the In Camera Inspection As discussed in Plaintiff's Memorandum Re: the Discoverability of the Notes of Barbara Davis, Esq. dated December 16, 2005, plaintiff contends that the Bank has not, and cannot, demonstrate its burden of proof that the notes are "work product."

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Plaintiff anticipates that the in camera inspection will provide additional support for this Court to find that: (i) the notes were not prepared by Ms. Davis in anticipation of FLSA litigation by Ms. Hutton in the State of Arizona; and (ii) that therefore the notes do not constitute work product. Specifically, Plaintiff anticipates that the in camera inspection will reveal that there is no nexus between: (i) the preparation of notes by Ms. Davis concerning the May 2000 oral communication of Mr. Aubry relating to his study of the exempt status of State of Washington client managers during the pendanacy of California state law (not, as the Bank points out, FLSA) litigation; and (ii) an anticipation of defending the Bank in FLSA litigation in Arizona instituted by Ms. Hutton nearly six years later. The notes are not work product. They should be produced to the plaintiff in their entirety. Even if the Bank could demonstrate that the notes are work product, given that these notes are the only contemporaneous recording of what the bank's attorneys knew or should have known as result of Mr. Aubry's 2000 study and related findings, plaintiff has a substantial need for the "objective work product" and the "opinion work product" portions of the notes, the equivalent of which cannot be obtained from the deceased author or from other sources. With respect to objective work product, to the extent the in camera inspection of the notes reveals that the notes include any facts, objective statements, and the reporting of or memorialization of facts, objective statements and other data points and to the extent that the Court finds that plaintiff has a substantial need for such "objective work product," then those portions of the notes should be produced. Similarly, with respect to opinion work product, to the extent the in camera inspection of the notes reveals the mental impressions of Ms. Davis, including her impression of Mr. Aubry's findings were with respect to the exempt status and

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classification issue, that opinion work product must be disclosed to the plaintiff since such mental impressions crucial to plaintiff's demonstration that the Bank acted willfully by ignoring Mr. Aubry's findings for nearly two years. Any and all opinion work product in the notes is discoverable by the plaintiff because the need for this material is compelling and substantial in that there are no other contemporaneous recordings of what any of the other Bank's attorneys knew or should have known as a result of Mr. Aubry communicating his findings to them relating to his study of the exempt status and classification of client managers in 2000. And it is what the Bank knew or should have known in 2000 as a result of their paid consultant's findings that is precisely at the core of whether the bank acted willfully by waiting until nearly two years before acting on his findings and reclassifying the client managers in 2002 as non-exempt. The notes are not work product. Even if they are, the objective work product and opinion work product exceptions apply. The notes should be produced in its entirety to plaintiff. Defendant's Statement Defendant objects to Plaintiff rearguing her position in the name of this statement and calls the Court's attention to the parties' memoranda on discoverability of the notes. Plaintiff contends that she needs the notes because they bear directly on the issue of wilfullness. Response, page 1, lns 21-26. She states that the notes are the only contemporaneous recording of the advice the Bank's paid consultant/expert, Mr. Aubry, provided on the issue and what the Bank should have known on the issue as a result. Mr. Aubry reported his observations assuming the Client Managers he interviewed worked in California. The Bank acknowledges that Mr. Aubry's

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observations were a factor in its later decision to convert Client Managers to overtime eligible in California and elsewhere. The following pages from Mr. Aubry's deposition, and his Declaration referred to in the deposition are attached as Exhibit "B": p. 45, ln 23 through p. 49, ln 13. p. 112, ln 21 through p.116, ln 12. p. 123, ln 16 through p. 128, ln 6. p. 140, ln 13 through p. 141, ln 24. These reflect the context of his participation and what he recalls telling the parties to the telephone conference. Defense counsel knows what the notes contain. Without disclosing their content, it is impossible to state herein what counsel "anticipates" the notes will reflect. However, the only statements attributable to Mr Aubry, which a reader could say the notes reflect, would be statements consistent with his interview notes, attached hereto as Exhibit "C", presumably , and the contents of Exhibit "B". The contents of both Exhibits have long been in Plaintiff's possession. DATED this 26th day of April, 2006. ROGERS & THEOBALD, LLP RYLEY CARLOCK & APPLEWHITE /s/ Charles L. Chester Charles L. Chester One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorneys for Defendant

19 /s/ Lydia A. Jones 20 21 22 23 24 25 26 Lydia A. Jones, Esq. 2425 East Camelback Road Phoenix, AZ 85016 Attorneys for Plaintiff

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 By /s/ Lydia A. Jones I hereby certify that on April 26, 2006, I electronically transmitted to the clerk's office using the CM/ECF system for filing and transmittal of a notice of electronic filing to the following CM/ECF registrants: Charles L. Chester Ryley Carlock & Applewhite One North Central Avenue, Suite 1200 Phoenix, AZ 85004-4417 Attorneys for Defendant Bank of America, N.A.

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