Jones Day Couple Says 1993 Parental Leave Memo Must Be Disclosed

Married lawyers accusing Jones Day of discriminating against biological fathers say the firm waived any attorney-client privilege over an in-house memo regarding a decades-old change to its parental leave policy.

The 1993 memorandum from Jones Day’s then-human resources director to its managing partner at the time is relevant to their case and should be seen by a jury in the 2019 case, which is scheduled for trial on Nov. 7, 2025, Mark Savignac and Julia Sheketoff said in a brief filed Wednesday.

Because an attorney-client privilege waiver extends beyond a specific document at issue to all advice on the matter that’s the subject of the document, all other communications between the former HR director and Jones Day regarding the policy change also must be disclosed, the couple told the US District Court for the District of Columbia.

The memo was sent in the wake of the Family and Medical Leave Act’s passage and led to Jones Day adopting a presumptive period of eight weeks of disability leave for new mothers, which Savignac and Sheketoff claim was driven by and resulted in discrimination based on sex. The firm told Judge Randolph D. Moss in an Oct. 30 brief that the memo is shielded from disclosure under the “at issue” waiver doctrine because a privilege waiver under that rule only applies when a litigant relies on a privileged communication as an element of a claim or defense.

The nondiscriminatory reason Jones Day said it’s offering to counter the couple’s sex discrimination claims is based on a recent declaration from its HR director describing the business rationale behind her recommended policy change. It’s only her reasons that have been placed at issue, not the contents of the 1993 memo, the firm said.

But Savignac and Sheketoff’s brief said Jones Day’s nondiscriminatory-rationale defense is based both on the HR director’s advice as an attorney and the firm’s selective disclosure of part of her memo. That’s “a classic at-issue waiver of privilege,” they said.

Jones Day’s argument that the HR director never actually shared her reasons for proposing the policy change with the then-managing partner means the firm really “has no admissible evidence” supporting its nondiscriminatory justification, the couple said. The firm’s argument is also at odds with the evidence, which suggests the managing partner approved the presumptive period of eight weeks of disability leave for new mothers and other parental leave policy changes for the reasons the HR director stated in her memo, they said.

Moss already found the memo relevant to Jones Day’s business reasons for the presumed-disability leave when he ruled that a trial is required, and the firm’s brief offered “nothing to actually dispute” that finding, the couple said. Principles of consistency and fairness “require Jones Day to produce the full memo,” they said.

The couple is requesting an expedited ruling on the waiver issue to avoid delaying the trial date.

Savignac and Sheketoff represent themselves. Jones Day represents itself and individual defendants.

The case is Savignac v. Jones Day, D.D.C., No. 1:19-cv-02443, supplemental brief filed 11/13/24.