Privilege Log Helps Defeat Summary Judgment on One Count

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Conner v. Stark & Stark, P.C., 2025 WL 1694052 (D.N.J. June 17, 2025), defendant’s privilege log helped partially defeat defendant’s summary judgment motion.

Plaintiff sued alleging wrongful termination.  Defendant asserted that termination was first considered on June 26 or 27.  However, its privilege log contained entries showing earlier privileged communications relating to terminating plaintiff.  The court held that, combined with other evidence, the privilege log raised factual disputes and credibility issues.

Ms. Connor had been hired by the defendant, Stark & Stark, as an accounts payable and receivable manager.  After surgery, she wanted to work from home. However, the firm was moving its office and sent an email: “Next week.  All hands on Deck for the entire week.”  The email stated an exception for those whose area was “set up and ready to go….” 

Stark asserted that Ms. Connor was not present for the entire week.  Ms. Connor said she was present for three days.

On May 23, 2023, before Ms. Connor’s doctor gave her clearance to return, Stark told her that, if she was not cleared to return, she must take FMLA,  and also asked her to increase her in-office time.  She responded the same day, saying that she intended to do so, when she was able to drive, and expressed uncertainty about the specific hybrid work policy.  Stark did not reply to her email.¹

On June 2^nd, Ms. Connor sent a follow up email.  A few days later she was cleared to return to work.  Stark contended that she was not in the office on June 26^th, and alleged that, as a result, she missed a directive to transfer $1.9 million.

A few days later, on June 30, 2023, Stark terminated Ms. Connor and proffered four reasons.

Ms. Connor sued asserting disability discrimination and retaliation under New Jersey law, and FMLA claims. Stark moved for summary judgment.

Her supervisor, Mr. Townsend, “testified that Plaintiff’s termination was first considered on June 26 or 27, 2023.”

According to Defendant, Plaintiff’s absence from the office on June 26, 2023—after Plaintiff had been cleared by her doctor to return to work—led to Plaintiff missing an important directive from the Defendant’s managing shareholder to initiate a $1.9 million wire transfer for a client…. This alone, according to Defendant, was enough of a reason to fire Plaintiff, as Defendant argues it “was not required by any law to ignore [Plaintiff’s] insubordination at the end of June 2023 simply because she underwent a shoulder surgery two months earlier and missed a few days of work.” … Defendant further argues that Plaintiff was absent from the office before her surgery, even though Townsend directed the Finance Department to work from the office to assist with the office move.

Conner v. Stark & Stark, P.C., 2025 WL 1694052 (D.N.J. June 17, 2025).

The Connor court found that Ms. Connor had pointed to evidence sufficient to survive summary judgment on the State-law claims.  It wrote:

For instance, a reasonable jury could find that Defendant made the decision to terminate Plaintiff before the $1.9 million wire transfer incident on June 26, 2023, and before Plaintiff was cleared to return to the office on June 5, 2023. Indeed, Defendant’s privilege log in this matter suggests Plaintiff’s termination was being discussed as early as May 23, 2023, and a human resources representative testified that “earlier in June” there was a direction to work out the logistics and process for terminating Plaintiff…. The timing of Defendant’s communication with outside counsel on May 23 is also significant in that it occurred on the same day that Townsend e-mailed Plaintiff asking whether she was cleared to return to work, advising her about medical leave and the need to be in the office more regularly…. Based on this timeline, a reasonable jury could conclude that discriminatory intent motivated Defendant’s decision to terminate Plaintiff. [emphasis added].

Id.

The court also wrote:

Finally, Plaintiff has raised a credibility issue, particularly as to Townsend, that is more appropriate for a jury to decide. For example, Townsend testified that Plaintiff’s termination was not discussed until June 26 or 27, 2023…, which appears inconsistent with Defendant’s own privilege log and the May 23, 2023 communications…. And Defendant’s privilege log shows that Townsend himself received an e-mail from Defendant’s counsel with the subject line “Information Needed for Evaluation of Options for Employment Termination” on June 19, 2023…. Defendant does not address Plaintiff’s argument about Townsend’s credibility in its reply brief, but the Court notes that Townsend’s credibility may be significant because of his central role in the underlying events.

Id.

While Ms. Connor submitted additional evidence raising a genuine dispute of material fact, the privilege log was a substantive factor in finding a genuine dispute of material facts on the State-law claims. The court granted summary judgment against Ms. Connor on the FMLA claims.

Privilege logs have been used as evidence that the duty to preserve was triggered by assertions of work product.  Is Marking Documents as “Work Product” an Admission that the Duty to Preserve is Triggered? (Nov. 5, 2024); Designation of “Work Product” Supports Inference of Intentional Spoliation (Jun. 27, 2024); When Did the Duty to Preserve Arise? – At Time of Plaintiff’s Pre-Suit Investigation (May 11, 2025).

Connor is the first decision I have seen that made substantive use of a privilege log.  The decision states that it is not for publication.

Notes

1. Stark had a policy on remote work.  Ms. Connor asserted it did not apply to her. ↩︎

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.