An attorney hired on a temporary contract basis to review documents at a law firm is not entitled to overtime pay because his work involved using his judgment as a lawyer, a federal judge has ruled.
William Henig sought overtime pay from Quinn Emanuel Urquhart & Sullivan under the Fair Labor Standards Act, saying he did no more than review 13,000 documents for whether they were, or were not, responsive to a discovery request.
Under the Fair Labor Standards Act and the New York Labor Law, law firms are exempt from the requirement to pay overtime, but Henig said he was not engaged in the practice of law during his two-month stint at Quinn Emanuel as he was not required to exercise legal judgment and was simply engaged in the mundane tagging of documents on the firm’s Document Review Project.
But Southern District Judge Ronnie Abrams granted summary judgment to Quinn Emanuel in the putative class action of Henig v. Quinn Emanuel Urquhart & Sullivan, 13-cv-1432, commenting that “Not all of [mass document review] is law at its grandest but all of it is the practice of law. Mr. Henig was engaged in that practice.”
In 2012, Henig was placed with Quinn Emanuel by the legal staffing company Providus New York. His job, with the firm’s “First Level Review Team,” paid him $35 an hour, with 57-60 hour weeks and he was expected to review 50 to 60 documents an hour.
After brief orientation and a slide show presentation, he said, all he had to do was tag documents “responsive” or “non-responsive,” a determination that depended solely on terms or names contained on lists and charts provided by the law firm.
But the presentation also referred to separate sub-tags for attorney-client privilege, work product and deliberative process privilege. It instructed team members to “err in favor of designating a document which has any possibility of being privileged as ‘privileged,” warning “that [p]rivilege can be tricky and there are a lot of gray areas.”
And in September 2012, the review team received more detailed instructions on whether and when to mark a document as privileged.
In her decision, Abrams noted that the presentation also told the team to look for “key” and “interesting” documents that “are interesting or important to the case and you feel should be flagged for the group, such as documents that would be helpful in depositions or briefs.”
“The presentation indeed uses language that anticipates the need for legal judgment, particularly with regard to privilege, which the presentation acknowledges is ‘tricky’ and includes ‘a lot of gray areas’,” Abrams said.
Henig argued that the presentation did not accurately describe the job he did at the firm, but the judge was unpersuaded.
“Even assuming that plaintiff did receive verbal instructions that contradicted the presentation, however, those instructions did not strip plaintiff’s work on the document review project of all legal judgment,” she said.
At oral argument on Oct. 29, Henig’s attorneys conceded that he was not claiming he was doing “work a machine could do” but they insisted the work only involved human judgment, not legal judgment.
But Abrams said “plaintiff’s tagging history and his other descriptions of his role on the document review project, however, confirm that his job involved more than the largely mindless task that would result from following the verbal instructions to the letter.”
“In particular, plaintiff’s use of the deliberative process privilege and ‘key’ tags on certain documents as well as his comments on the potentially privileged nature of other documents, make clear that plaintiff’s work on the document review project involved the type of professional judgment necessary to be engaged in the practice of law,” she said.
The decision comes two weeks after a settlement in another Fair Labor Standards Act case that was brought against Skadden, Arps, Slate, Meager & Flom and Tower Legal Staffing (The Am Law Daily, Dec. 16).
Judge Richard Sullivan on Dec. 22 approved the settlement, which calls for $75,000 payment to name plaintiff David Lola and two other contract lawyers placed at Skadden. Left unresolved in Lola v. Sadden, Arps, 13-cv-05008, was the question before Abrams—whether some legal work is so routine that it can’t be considered the practice of law.
Henig was represented by D. Maimon Kirschenbaum, a partner, and Denise Schulman, an associate, of Joseph & Kirschenbaum. The firm also represented Lola in the case against Skadden and Tower Legal.
Quinn Emanuel was represented by firm partners Peter Calamari, Marc Greenwald, Elinor Sutton and associate Samuel Kitchens.
“When we contract with license lawyers to perform a document review we expect them to exercise judgment and in fact practice law and we’re pleased the court’s decision vindicates our position,” Greenwald said Wednesday.
Daniel O’Keefe, partner and Zachary Hummel, of counsel, of Bryan Cave represented Document Technologies, the successor to Providus.