*1 This case has been referred by Hon. Charles J. Siragusa to the undersigned for all pretrial matters, excluding dispositive motions.

Plaintiff in this case, Merouane Lakehal-Ayat (“Plaintiff”), was a tenured professor of finance at defendant St. John Fischer College (“Defendant” or “College”). He is over 70 years old; Muslim; speaks English as a second language; and is a naturalized United States citizen. Plaintiff alleges employment discrimination, retaliation and hostile work environment based on his national origin, religion and age. He also alleges breach of his employment contract. The complaint has been filed against the College itself as well as four individuals (president of the college, college provost, dean of the business school, and the former chair of Plaintiff's department). Plaintiff alleges that he was denied the same pay increase as his colleagues and retaliated against for complaining of discrimination in pay; denied the opportunity to teach graduate level classes; had his scholarly work questioned; and was unfairly suspended. Plaintiff alleges both discrimination and breach of his employment contract as a result of unfair/unfounded termination and removal proceedings instituted against him. He alleges that these proceedings resulted in a formal hearing by a faculty committee (“Hearing Committee”) that exonerated him, the formation of an “ultra vires” committee, and the Board of Trustees ultimately revoking Plaintiff's tenure and terminating his employment. Defendant counters that Plaintiff committed academic misconduct by using unqualified undergraduate students to perform grading, lesson planning and exam preparation and that he retaliated against students who complained of this conduct.

Currently before the Court are two discovery disputes between the parties. First, Defendant seeks production from Plaintiff of all communications between counsel and students or other potential witnesses made in connection with the College's investigation and hearing as to the misconduct claims. Plaintiff refuses to disclose communications between his counsel and students during the investigatory and hearing proceedings on the basis that they are subject to work-product privilege. Second, Plaintiff seeks discovery of documents and communications related to the College's internal investigation of Plaintiff and the Hearing Committee's proceedings. Defendant indicates that it has produced all investigative reports and underlying hearing documents, witness statements and communications between the College's counsel and any witnesses or potential witnesses, but that internal communications regarding the investigation and hearing are protected by attorney-client privilege and work-product privilege.

The Court addresses these issues seriatim.

Communications with Students or Unrepresented Parties

The first category of documents at issue involves communications between Plaintiff's counsel and students or other potential witnesses that were made in connection with the investigation and hearing conducted by the College related to Plaintiff's misconduct. The College argues that such communications are not privileged, while Plaintiff asserts that his counsel's communications are protected by the work-product privilege.

*2 “[C]ommunications from non-parties to counsel for parties in a lawsuit generally do not qualify as attorney work product.” Carpenter v. Churchville Greene Homeowner's Ass'n, No. 09-CV-6552T, 2011 WL 4711961, at *10 (W.D.N.Y. Sept. 29, 2011), report and recommendation adopted sub nom. Carpenter v. Churchville Greene Homeowner's Ass'n, Inc., No. 09-CV-6552, 2011 WL 6012539 (W.D.N.Y. Dec. 1, 2011) (holding emails from non-party to plaintiffs’ counsel do not constitute privileged attorney work product because they “do not reveal counsel's opinions or strategies.”); see also Ricoh Co. v. Aeroflex, Inc., 219 F.R.D. 66, 69 (S.D.N.Y. 2003) (emails sent by a non-party to defense counsel are not protected by the work product doctrine, explaining that “it [would be] a stretch to apply the attorney work product privilege to documents created by a third party and then sent to counsel for a party.”).

Even assuming Plaintiff's communications with student witnesses contained work product, district courts in the Second Circuit have consistently held that the disclosure of work product to a third-party witness waives the privilege. See, e.g., In re Refco, 2012 WL 678139, at *3; Ricoh, 219 F.R.D. at 70 (holding “plaintiffs cannot invoke the work product doctrine, as plaintiffs’ attorneys shared their legal strategy with a non-party”); Alexander Interactive, Inc. v. Adorama, Inc., No. 12 Civ. 6608 (PKC) (JCF), 2014 WL 12776440, at *11 (S.D.N.Y. June 17, 2014) (noting “[d]istrict courts in this Circuit have held that disclosure to a third-party witness in the action waives privilege ...[as] [o]therwise, ‘the ability of a party to meet with a non-party witness, show him documents and ask him questions, and then mask the entire preparation session in the cloak of work product protection would serve to facilitate even the most blatant coaching of a witness.’ ”).

Accordingly, the Court finds that these communications are not protected by the work-product privilege and must be disclosed.

Communications between the College's Counsel and Faculty Members related to the Investigation and Hearing

The second category of documents at issue involves communications between the College's counsel and its faculty members that were made in relation to the investigation into Plaintiff's misconduct, and the later Hearing Committee's hearing and proceedings.

it appears undisputed that the Hearing Committee is vested with authority pursuant to the College's Faculty Statutes to make recommendations regarding tenure status, and it was responsible for conducting a hearing related to the College's investigation into Plaintiff's alleged misconduct. After the hearing, the Hearing Committee issued a post-hearing report outlining its findings and recommendations to the Board of Trustees; this report was provided to Plaintiff both at the time the report was made and during discovery in this lawsuit. The Board of Trustees was then required to either accept the recommendation or remand the matter back to the Hearing Committee to answer certain questions, clarify findings, or take new testimony and/or evidence. The Board of Trustees remanded the matter back to the Hearing Committee for further proceedings. After remand, the Hearing Committee issued a second recommendation—which again was provided to Plaintiff at the time the recommendation was made and during discovery in this lawsuit—and the Board of Trustees could either accept that recommendation or make a different decision. In accordance with the Faculty Statutes, the Board of Trustees issued its final decision, terminating Plaintiff's employment. The specific grounds for the Board of Trustees’ decision are outlined in its final Report and Decision, which once again was provided to Plaintiff both at the time of the decision and during discovery in this lawsuit.

*3 Since the Hearing Committee draws its authority from the College through its Faculty Statutes, it accordingly may seek and receive legal advice from its counsel. Any such communications between counsel and the Committee are clearly protected by the attorney-client privilege because they concern the interpretation and application of procedural rules under the Faculty Statues. Plaintiff argues that the College has waived the attorney-client privilege here. The Court finds this argument without merit.

It is well established that privileged communications and work product generated in the context of an investigation or proceeding are not waived simply because they relate to claims or defenses at issue in the litigation. See Johnson v. J. Walter Thompson U.S.A., LLC, No. 16CIV1805JPOJCF, 2017 WL 3432301, at *8 (S.D.N.Y. Aug. 9, 2017) (holding “[r]eliance by the Corporate Defendants on the conclusions of the report does not open up to discovery the details of the investigation that led to the report” and that, accordingly, “there [was] no waiver with respect to the categories of [documents] that could be relevant, if at all, only to the accuracy of the findings in the report, specifically, notes of interviews of [company] employees, drafts of the report, and invoices.”); see also House v. Wackenhut Services, Inc., No. 10 Civ. 9476, 2012 WL 4017334, at 17 (S.D.N.Y. Aug. 20, 2012) (finding that challenge to truth of report relied upon by employer was “a red herring,” since relevant issue was employer's good faith reliance, not accuracy of report).

In order to establish a waiver of privilege, Plaintiff must demonstrate that Defendants are relying on the privileged communications concerning the investigation or the Hearing Committee's proceedings as a defense in this case. See Koumoulis v. Indep. Fin. Mktg. Grp., Inc., 295 F.R.D. 28, 40 (E.D.N.Y. 2013), aff'd, 29 F. Supp. 3d 142 (E.D.N.Y. 2014) (“Whether a waiver may be implied is determined on a case-by-case basis.”); In re County. of Erie, 546 F.3d 222, 228-29 (2d Cir.2008) (“The key to a finding of implied waiver ... is some showing by the party arguing for a waiver that the opposing party relies on the privileged communication as a claim or defense or as an element of a claim or defense.”). “[T]he implied waiver does not apply to every type of investigation ... [as] such a broad interpretation would ‘eviscerate both the attorney-client privilege and the work product doctrine.’ ” Koumoulis, 295 F.R.D. at 41.

Here, the College is not relying on the privileged communications at issue as a defense in this case. For example, it is not asserting any type of “good faith” affirmative defense based on counsel's advice. Neither the fact that the Board of Trustees relied upon the conclusions reached by the investigation into Plaintiff's misconduct nor the fact that it took the Hearing Committee's findings into consideration (per the Faculty Statutes) as part of its decision making opens up to discovery privileged attorney-client communications related to the details of those underlying matters. See Johnson, 2017 WL 3432301, at *8.

Finally, the Court finds it significant that the College has already produced to Plaintiff all communications between student witnesses and its counsel, as well as all non-privileged documents and communications regarding the details of its investigation and the Hearing Committee's proceedings and recommendations. As such, disclosure of the privileged documents Plaintiff seeks is simply not necessary to determine the adequacy of the College's investigation or the reasonableness of the Board of Trustee's reliance on the Hearing Committee's findings.

*4 In sum, the Court finds that the communications at issue are protected by the attorney-client privilege and that the privilege has not been waived as the College has not put the privileged communications “at issue” in this case. Accordingly, the Court denies Plaintiff's request for disclosure.

For the above reasons, the Court: (1) grants Defendant's request for disclosure of all communications between Plaintiff's counsel and students or other potential witnesses that were made in connection with the investigation and hearing conducted by the College related to Plaintiff's misconduct; and (2) denies Plaintiff's request for disclosure of communications between the College's counsel and its faculty members that were made in relation to the investigation into Plaintiff's misconduct, and the later Hearing Committee's hearing and proceedings.

Further, the Court grants the parties’ joint request to extend all dates in the Case Management Order 60 days from the date of this Decision and Order.

SO ORDERED.