ALEXANDER LAKES, Plaintiff, v. FULTON COUNTY SCHOOL DISTRICT, Defendant CIVIL ACTION FILE NO: 1:17-cv-04685-WMR United States District Court, N.D. Georgia, Atlanta Division Filed July 03, 2019 Counsel Kristine Orr Brown, Orr, Brown & Billips, LLP, Gainesville, GA, Matthew C. Billips, Barrett & Farahany, Atlanta, GA, for Plaintiff. Jeffrey Robert Daniel, Marquetta Johnson Bryan, Nelson Mullins Riley & Scarborough LLP, Atlanta, GA, for Defendant. Ray II, William M., United States District Judge ORDER *1 This matter is before the Court on Plaintiff Alexander Lakes's Objections to and Appeal from the Order of the Magistrate Judge Denying Plaintiff's Motion to Compel and to Extend Discovery as Needed. [Doc. 56]. The facts and procedural history of this case are set forth in the Magistrate Judge's Order [Doc. 49] and are fully incorporated herein by reference, unless otherwise noted. On March 20, 2019, Plaintiff filed this appeal to the Order, [Doc. 56] and Defendant filed a response in opposition to Plaintiffs' appeal on April 8, 2019. [Doc. 58]. After due consideration, the Court enters the following Order. I. LEGAL STANDARD Pursuant to Federal of Civil Procedure 72(a), the Magistrate Judge may issue a written order for any non-dispositive, pretrial matter. A party may serve and file objections to that order within 14 days, and the Court reviews those objections and can “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). “Clear error is a highly deferential standard of review.” Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir. 2007). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). Plaintiff timely objected to the Magistrate Judge's Order denying Plaintiff's Motion to Compel and to Extend Discovery as Needed. Therefore, the Court reviews the Magistrate Judge's Order for clear error. II. BACKGROUND In the Order, the Magistrate Judge has provided a detailed narrative of the undisputed material facts. [Doc. 49 at 2-8]. The Court adopts the facts as provided in the Magistrate Court's Order. Id. Additionally, the Court has also conducted its own review of the record. See Fed. R. Civ. P. 56(c)(3). Summarizing that narrative, and relevant to the matters at issue, Plaintiff alleges, in February 2016, that he submitted a written request to Defendant for a reasonable accommodation under the Americans with Disabilities Act (ADA) and asked to be transferred to a different position. [Doc. 49 at 3]. The accommodation request form and document of disability form, completed by Plaintiff's physician, noted Plaintiff's various diagnoses and their affects on his work ability. Id. at 3-4. However, the forms did not mention Plaintiff had also been diagnosed with Type 2 diabetes. Id. At the time, Lance Young was employed by Defendant and evaluated Plaintiff's ADA request for accommodation. Id. at 3. Mr. Young reached out to Defendant's counsel to discuss whether the request demonstrated a disability within the meaning of the ADA. Id. On April 4, 2016, Defendant denied Plaintiff's February 2016 request for accommodations because Plaintiff had not submitted sufficient information to establish he was disabled within the meaning of the ADA. Id. at 4. In July 2016, Mr. Young left his position with Defendant, and Dr. Pamela Gayles was promoted to Mr. Young's vacated position. Id. Around this time, Plaintiff or his counsel became aware Plaintiff's diabetes diagnosis was not mentioned in his request. On August 12, 2016, Plaintiff's counsel wrote to Defendant's counsel, Marquetta Bryan, and stated she had recently learned Plaintiff's diabetes diagnosis “was not included in the paperwork submitted to the school district [in] February.” Id. at 5. The letter also stated “[Defendant] should receive additional medical records concerning this matter shortly.” Id. Later, on August 31, 2016, Plaintiff's counsel wrote again to Ms. Bryan, stating “I understand that [Plaintiff's] doctor recently submitted to the [Defendant] the reasonable accommodation paperwork including [Plaintiff's] diabetes diagnosis.” Id. Ms. Bryan “has not denied, and does not deny, that she received Plaintiff's counsel's letters.” Id. at 8, n.3. *2 On or about September 2, 2016, Plaintiff spoke with Dr. Gayles concerning his request. Id. at 6. According to Dr. Gayles, Plaintiff was vague in their discussion and “nonspecific about [the] challenges in his current position and current assignment.” Id. at 6-7. Based on Plaintiff's documentation and their conversation, Dr. Gayles determined “a transfer was not needed and would not be provided.” Id. During discovery, Plaintiff's counsel became aware Mr. Young and Dr. Gayles did not know about Plaintiff's diabetes diagnosis when his accommodations request was denied. Id. Also, during Mr. Young's deposition, the parties disagreed whether Mr. Young's communications with Ms. Bryan were protected by attorney-client privilege. Id. Discovery closed on December 21, 2018. Id. at 17, n.8. On January 23, 2019, Plaintiff filed a Motion to Compel and to Extend Discovery. [Doc. 38]. Specifically, Plaintiff wanted to conduct a limited search of Ms. Bryan's computer; to compel the deposition of Ms. Bryan; and to receive privilege logs showing any communication about “the issue at hand.” Id. at 5-6. On March 6, 2019, the Magistrate Judge denied both motions. [Doc. 49]. III. ANALYSIS Plaintiff raises two objections to the Magistrate Judge's order. First, Plaintiff claims Defendant's counsel's “notification” to Defendant regarding Plaintiff's diabetes diagnosis is not privileged. [Doc. 56 at 5-7]. Second, Plaintiff claims any privileged regarding communications between Mr. Young and Defendant's counsel are waived via Defendant's good faith defense. Id. at 7-14. Neither of these arguments succeed. A. Any communication between Defendant and counsel is privileged. Defendant asserts any communication between itself and counsel is protected by attorney-client privilege. [Doc. 58 at 8]. Therefore, any supposed “notification” from counsel to Defendant regarding Plaintiff's diagnosis would also be shielded by privilege. “The party invoking the attorney-client privilege bears the burden of proving that (1) an attorney-client relationship existed, (2) that a confidential communication was made to or from (3) an attorney who had been retained for the purpose of securing legal advice or assistance.” United States ex rel. Donnelly v. Wells Fargo Bank, N.A., 165 F. Supp. 3d 1319, 1328 (N.D. Ga. 2015) (emphasis added) (quoting United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991)). As the Magistrate Judge noted, “there is little doubt that when Mr. Young contacted [Defendant's counsel] to discuss Plaintiff's February 2016 request for accommodations under the ADA, he was seeking legal advice from the [Defendant's] legal adviser in her capacity as such.” [Doc. 49 at 13]. Plaintiff claims counsel's notification to Defendant “does not involve legal advice, but merely whether [Defendant's] counsel relayed information provided by Plaintiff's counsel.” [Doc. 56 at 6]. Yet, Plaintiff does not explain why communication regarding a legal issue would not be considered advice or assistance. Plaintiff also implies only communications “from client to attorney” are covered by privilege. Id. However, any communication made “to or from an attorney” is protected by privilege. See Wells Fargo Bank, N.A., 165 F. Supp. 3d at 1328. Plaintiff points out that the Magistrate Judge “intends to address the matter of imputed knowledge at summary judgment.” [Doc. 56 at 6-7]. Plaintiff argues that summary judgment “will not address Plaintiff's concern that he be permitted to show that Defendant's [counsel] advised Defendant on the diabetes diagnosis.” Id. First, Plaintiff—in his own words—concedes any supposed “notification” would amount to legal advice. Therefore, the notification would be protected by attorney-client privilege. Second, this concern does not out-weigh the sanctity of attorney-client privilege. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1980) (“Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interest in the observance of law and administration of justice.”). B. Defendant has not waived attorney-client privilege by asserting a general good faith defense. *3 “The attorney-client privilege ‘belongs solely to the client,’ and the client may waive it, either expressly or by implication.” Cox v. Adm'x U.S. Steel & Carnegie, 17 F.3d 1386, 1417 (11th Cir. 1994) (citing In re Von Bulow, 828 F.2d 94, 100, 101 (2d Cir. 1987)). “Courts have found waiver by implication in three sets of circumstances: (1) when a client testifies concerning portions of the attorney-client communication, (2) when a client places the attorney-client relationship directly at issue, and (3) when a client asserts reliance on an attorney's advice as an element of a claim or defense.” Id. at 1418 (internal quotations and brackets omitted) (quoting Sedco Int'l S.A. v. Cory, 683 F.2d 1201, 1206 (8th Cir.), cert. denied, 459 U.S. 1017 (1982). Plaintiff claims Defendant waived attorney-client privilege because Defendant asserted a generic good faith defense. [Doc. 56 at 8]. Defendant's only witness “to testify that he spoke with counsel ... was [Mr. Young], and he did not testify regarding any portion of the attorney-client communication.” [Doc. 49 at 15]. Therefore, Mr. Young did not waive attorney-client privilege in his deposition. Although Defendant asserts a good faith defense, Defendant has not claimed it relied on attorney's advice as an element of the claim or defense. Discussing the Plaintiff with counsel does not necessarily imply Defendant is asserting reliance on counsel's advice as a part of its good faith defense. Plaintiff cannot cite to an ADA case where the court found a defendant automatically waived privilege by asserting a generic good faith defense because such precedent does not exist. See Garcia v. Completely Kids, No. 8:14CV119, 2016 U.S. Dist. LEXIS 5356, at *6-10 (D. Neb. Dec. 2, 2008); DeWitt v. Sw. Bell Tel. Co., No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *14-20 (D. Kan. Feb. 24, 2014); Jones v. Nissan N. Am., Inc., 2008 U.S. Dist. LEXIS 97665, at *3-8 (D. Tenn. Dec. 2, 2008). The instant case is distinguishable from Cox, cited by Plaintiff, because in that case, the defendant actually claimed it relied on counsel's advice. Also, Defendant has not taken any affirmative action to place the attorney-client relationship at issue or “inject[ed] a new factual or legal issue into the case.” See Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1098 (7th Cir. 1987) (a defendant may waive attorney-client privilege by injecting “a new factual or legal issue” into the case regarding good faith during settlement negotiations). Defendant's counsel “has not denied, and does not deny, that she received Plaintiff's counsel's letters.” [Doc. 49 at 8, n.3]. Plaintiff is attempting to force this factual issue—not the Defendant. Furthermore, Defendant's counsel did not participate in any investigation to justify an analogy to the Faragher-Ellerth defense. [Doc. 49 at 16]. See also Musa-Muaremi v. Florists' Transworld Delivery, Inc., 270 F.R.D. 312, 318 (N.D. Ill. 2010) (“Several courts ... have found that asserting the Faragher/Ellerth defenses waives any attorney-client privilege that might apply to a defendant's investigation documents or communications.”). Finally, Plaintiff has failed to explain how he would be prejudiced by any action taken by Defendant's counsel. “The great weight of authority holds that the attorney-client privilege is waived when a litigant places information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would be manifestly unfair to the opposing party.” Cox, 17 F.2d at 1417 (quoting Conkling, 883 F.2d at 434). Plaintiff acknowledges he will have two other, legitimate avenues for arguing this issue at the summary judgment stage. [Doc. 56 at 14]. Considering this concession, the Court is unable to see how denying Plaintiff's motion would be manifestly unfair or prejudice Plaintiff in any way. C. Plaintiff does not present specific arguments about his specific discovery requests. *4 Outside of these two objections, Plaintiff presents no specific arguments why discovery should be extended. Plaintiff also does not address why he should be able to search Ms. Bryan's computer or depose her. As the Magistrate Judge points out, “how [Defendant's] counsel chooses to communicate with her client is not a matter of concern for Plaintiff.” [Doc. 49 at 17]. Plaintiff also does not address why the Court should “deviate from standard practices regarding the preparation and exchange of privilege logs in this case.” [Doc. 49 at 17]. IV. CONCLUSION In accordance with the foregoing, Plaintiff's Objections to and Appeal from the Order of the Magistrate Judge Denying Plaintiff's Motion to Compel and to Extend Discovery as Needed is DENIED and the Magistrate's Order is AFFIRMED. The Clerk is DIRECTED to refer this case to the Magistrate Judge for further handling. IT IS SO ORDERED, this 3rd day of July 2019.