Workplace investigations often relate to violations of rules, procedures, criminal acts, harassment, behavioral issues, and numerous other issues. While such investigations are often useful, employers must exercise caution when conducting such investigations if they do not want the report to be discoverable, because it is possible for the opposing party to obtain copies of the investigation if steps are not taken to preserve the attorney client and work product privileges.
Employers must consider the purpose of the investigation. If the purpose is to investigate the facts in an effort to determine what happened, the report may be discoverable; however, if the purpose of the investigation is so that the employer’s counsel may prepare for pending litigation, the report may be privileged.
Additionally, Employers should carefully document the purpose of the investigation, so that if they intend to exert the privilege, there is documentation to show a court regarding the purpose of the investigation. Note, if one of the defenses asserted is that a work place investigation was conducted, the documents and reports supporting the investigation are discoverable. See e.g. Harding v. Dana Transp., Inc., 914 F. Supp. 1084, 1093 (D.N.J. 1996) (“However, the use which most strongly suggests the possibility of waiver of the attorney-client privilege is Dana’s reliance upon the investigation as a defense to employer liability under Title VII…”)
Indeed, in harassment cases, an employer can raise the Faragher–Ellerth affirmative defense, which requires the employer to show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 275 (6th Cir.2009) (internal citation omitted). If the employer is sued, it can then argue that the investigation shows the employer’s reasonable efforts to detect and prevent harassment; however relying on such a defense waives the privilege for the investigation and supporting documents. See e.g. Reitz v. City of Mt. Juliet, 680 F. Supp. 2d 888, 892 (M.D. Tenn. 2010).
While the following steps do not guarantee that an investigation will remain privileged, if you do not want to disclose the investigation, the following guidelines should be implemented:
- The investigation must be conducted by an attorney, preferably outside counsel. For organizations with in-house counsel, the line between legal and business advice provided by in-house counsel is often murky. For this reason, having outside counsel that has been specifically retained to represent the organization in pending litigation in the safest course. If in-house counsel must conduct the investigation, documentation should be created which states that the investigation is only to prepare for pending litigation and that the investigation shall be limited to only those action reasonably necessary to prepare for pending litigation.
- An engagement letter or other documentation should clearly state that sole purpose of the investigation is to prepare for pending litigation.
- All documents, reports, interviews and communications regarding the investigation should contain a statement that they are solely to prepare for pending litigation.
- All documents, reports, and communications relating to the investigation should be kept confidential and only shared with members of the organization’s control group (officers, members of a board of directors, and legal counsel).
- Take reasonable steps to ensure that the documents, reports, or related communications are not shared or forwarded to anyone outside of control group.
- A report prepared regarding the investigation should include legal analysis, strategy recommendations and other “core” or “opinion work product.”
- If the report is requested, assert in writing both the attorney client and work product privileges.
- Do not assert that the conducting of an investigation is a defense to allegations in the suit. While there are good reasons to assert this defense, be aware that if it is asserted, the report and related documents will be discoverable.
- Keep written communications and other documents to a minimum. Abide by the adage attributed to Earl Long “Don’t write anything you can phone. Don’t phone anything you can talk. Don’t talk anything you can whisper. Don’t whisper anything you can smile. Don’t smile anything you can nod. Don’t nod anything you can wink.”
The only exception to point 9, is that you should document that the investigation is for the sole purpose of preparing for litigation.