Employers routinely investigate employee harassment or hostile-work-environment complaints yet inconsistently achieve privilege protection for those investigations.
For instance, a Florida employer failed to achieve privilege protection for notes of its investigator—who doubled as an attorney and HR Director—regarding an employee’s FMLA claim and a North Carolina law firm lost privilege protection for its outside counsel’s investigation of a harassment complaint because, the court found, the investigation was conducted for business reasons rather than legal reasons.
By contrast, a Utah employer, Midwest Commercial Interiors, secured privilege protection for its outside counsel’s investigation of an employee’s harassment complaint in Tingey v. Midwest Office, Inc.
In Tingley, a former account manager at Midwest Office, Inc. (Midwest”) sued the company and several “Supervisor Defendants” after a co-employee allegedly “drugged and raped” her on a business trip to Georgia. During discovery, the plaintiff requested information related to Midwest’s’ investigation into harassment claims of another employee, E.S. Midwest sought a protective order, but only argued that the investigation-related documents, prepared by outside counsel, were nondiscoverable because they were disproportionate to the case and privileged. Midwest recognized that it had the burden of proving that its lawyer conducted the investigation for legal-advice purposes and submitted a declaration of its partial owner. The declaration stated that, when the E.S. allegations arose, the company turned to outside counsel “to investigate the allegations and to give us legal advice about what steps we should take to protect our employee and also the company.”
It also submitted the outside lawyer’s declaration, which stated the purpose of his retention as:
The company “asked me to conduct an investigation in order to provide legal advice regarding the merits of the complaint, the company’s potential liability, and the corrective action that should be taken.”
The lawyer generally explained his investigation, which included interviewing the complainant, the alleged perpetrator, an HR representative, and other employees. He advised these interviewees that he was “conducting the investigation for the purpose of providing legal advice to the company.”
The plaintiff’s response mentioned that Midwest maintained a policy mandating investigations of sexual-harassment complaints. There was no deposition testimony of Midwest employees discussing its traditional implementation of this policy; no evidence of the engagement letter between Midwest and its outside counsel, and no evidence that may have countered Midwest’s declaration testimony.
The court applied federal privilege law in this federal-question case and held that the attorney–client privilege protects client-to-lawyer communications (and vice-versa) “made in order to obtain legal advice”, and, in the employee-investigation context, relied upon a Seventh Circuit opinion that stated:
When an attorney conducts a factual investigation in connection with the provision of legal services, any notes or memoranda documenting client interviews or other client communications in the course of the investigation are fully protected by the attorney–client privilege.
Also relying upon Midwest’s sworn declarations and an in-camera review, the Court found that Midwest had proved that its investigation into E.S.’s allegations were legal-advice related. The court found that the privilege did not protect “purely logistical” communications, such as emails scheduling meetings to discuss the investigation; but it held that the investigation’s core—the interviews and substantive client–lawyer communications were nondiscoverable.
For employers, Midwest’s handling of its privilege objections offers a model to follow. It supplied testimony from an executive and the lawyer to describe the investigation’s purpose. The declarations were specific, not conclusory.
For employees seeking discovery about the investigations, evidence of a mandatory-investigation policy coupled with employee testimony about that policy may overcome even the declaration of outside counsel.
Should your company be confronted with a claim of harassment your first step should be to hire outside counsel to conduct the investigation for the purpose of obtaining legal advice on how to handle the matter.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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