New York Federal Court Says Document Review By Contract Attorney Is Exempt Work
On December 30, 2015, a federal district court in Manhattan ruled that a temporary contract attorney was not entitled to overtime under the Fair Labor Standards Act or the New York Labor Law for the time he spent assisting in a large document review. William Henig, who brought his claims as a putative class and collective action against the law firm Quinn Emanuel Urquhart & Sullivan, LLP, alleged that he was entitled to overtime pay for his work despite federal regulations excluding licensed attorneys engaged in the practice of law from overtime eligibility. See, e.g., 29 C.F.R. § 541.304(a)(l).
Henig argued that the document review only required him to follow basic instructions and that he did not draw on legal knowledge and judgment to perform the work. As such, he claimed he was not “engaged in the practice of law” and therefore did not qualify for the learned professional exemption to the overtime laws. The Court disagreed and granted Quinn Emanuel’s motion for summary judgment. While acknowledging that junior attorneys are often tasked with document review projects that are “necessarily repetitive in nature, modest in intellectual scope, and banal in character,” the Court nonetheless held that Henig was indeed engaged in the practice of law while reviewing the documents.
Henig’s duties as a reviewer entailed identifying and “tagging” documents as responsive, privileged, and/or confidential. He argued that the directives Quinn Emanuel provided for this task instructed him “to tag documents responsive or not responsive based on the presence or absence” of certain terms or names, which required “merely the ability to read.” With respect to privilege, Henig likewise asserted that he was “merely … to identify attorneys and clients by referring to the lists and charts Quinn Emanuel provided.” The Court, however, viewed Henig’s description of his work as an oversimplification. In particular, the Court found that Henig’s use of the deliberative process and “key” tags on certain documents, as well as his comments on the potentially privileged nature of other documents, made clear that his work involved the type of professional judgment necessary to be engaged in the practice of law.
Quinn Emanuel’s motion for summary judgment had been held in abeyance pending the Second Circuit’s decision in Lola v. Skadden, Arps, Slate, Meagher & Flom LLP. In Lola, discussed in our earlier post, the Court of Appeals held that document review conducted by a contract attorney is not necessarily “practicing law,” particularly if the attorney “provided services that a machine could have provided.”
Henig v. Quinn Emanuel Urquhart & Sullivan LLP et al is a welcome development for law firms engaging contract attorneys for large scale document reviews, but firms should keep in mind that Lola leaves the door open for the professional exemption to fall to the wayside if the review does not entail some modicum of legal judgment.