Former In-House Counsel May Testify in Hostile Work Environment Case

In Crawford v. ExlService.com, LLC et al, 16-cv-9137, 2019 WL 6284228 (S.D.N.Y. Nov. 25, 2019), the court held that the former in-house counsel for defendant “is not categorically precluded from testifying on grounds of attorney-client privilege”, reasoning that “not all conversations between an attorney and a client are privileged.” The court noted that “[a]t trial, if Plaintiff’s counsel’s questioning threatens disclosure of attorney-client communications, the Court will rule on objections to ensure that the privilege is not breached.”

Judge Preska ruled that the in-house attorney and another witness “may both testify as to their personal knowledge of Defendants’ discriminatory conduct or practices, including conduct not directed at Plaintiff” since “[s]uch testimony is relevant to Plaintiff’s discrimination and hostile work environment claims, as well as Defendants’ arguments that Plaintiff did not make timely use of available procedures for reporting bias and that Defendants had effective programs for preventing discrimination.” In support, the court cited Rifkinson v. CBS Inc., No. 94 Civ. 7985 (KTD), 1997 WL 634514, at *2 (S.D.N.Y. Oct. 14, 1997) for the proposition that “[d]emonstrated bias by a decisionmaker is probative of discriminatory animus, and is therefore admissible even if that bias was directed against employees not similarly situated to the plaintiff”, and Abdus-Sabur v. Port Auth. of N.Y. and N.J., No. 00 Civ. 5496 (VM), 2001 WL 1111984, at *2 (S.D.N.Y. Sept. 20, 2001) for the proposition that “evidence of discrimination against other employees is relevant to establishing a generally hostile work environment … and the defendant’s notice of complaints during the relevant time period.”

The court did, however, exclude evidence regarding one witness’s pending lawsuit against defendants, reasoning that while that witness “may testify as to her knowledge of Defendants’ discriminatory conduct”, under Federal Rule of Evidence 403, “the probative value of evidence showing that she, too, has filed a lawsuit is substantially outweighed by the danger of confusing the issues and unfairly prejudicing Defendants.”