Company need not turn over internal sexual harassment investigative report prepared by outside counsel
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Tuesday, April 24, 2018

Company need not turn over internal sexual harassment investigative report prepared by outside counsel

By Marjorie Johnson, J.D.

A female executive who brought a lawsuit against her former employer claiming its CEO fired her because she rejected his sexual advances was not entitled to discovery of the reports and factual findings from an internal investigation into allegations of sexual harassment against the CEO, which had been conducted by outside counsel. A federal magistrate judge in New Mexico found that the documents were protected by work-product privilege, and that the plaintiff failed to show that she had substantial need for them and that the same information could not be otherwise obtained without undue hardship (Lassiter v. Hidalgo Medical Services, April 18, 2018, Vidmar, S.).

The employee, who served as the defendant’s chief operation officer, brought the instant action asserting violations of Title VII and the New Mexico Human Rights Act, among other related claims. At issue was her motion to compel production of the reports and factual findings from an internal investigation into allegations of sexual harassment by the CEO, which had been conducted by outside counsel. While acknowledging that the underlying facts of the investigation were discoverable, the employer argued that the results of the internal investigation led by the attorney were protected by work-product and attorney-client privileges.

Plaintiff seeks facts, not legal thoughts. The outside attorney was brought in to conduct an internal investigation into sexual harassment complaints against the CEO made by the plaintiff and two other female employees. The plaintiff sought discovery of the attorney’s reports of her findings, but did not contend that she was entitled to the attorney’s legal advice to the employer or her mental impressions. Rather, she sought the factual information that was gathered, specifically requesting the “facts, complaints, recording(s) of interview(s), and accounts of witnesses” interviewed by the attorney.

Investigation report was work product. The court first determined that the contents of the outside attorney’s reports that the plaintiff sought—the factual summaries of the information she learned in the course of her investigations—were in fact work product. Specifically, the employer established that the reports were documents prepared by its legal representative in anticipation of litigation. Thus, the reports were discoverable only if the plaintiff showed a substantial need for the materials and an inability to obtain their equivalent through other means absent undue hardship, or if the employer waived the protection.

Other ways to gather materials. The employee failed to show at this time that she had a substantial need for the materials and was “unable to obtain their substantial equivalent elsewhere.” Notably, the employer had disclosed the names of the employees whom the outside attorney interviewed. Moreover, the attorney herself was scheduled to be deposed.

Therefore, the plaintiff hadn’t shown that she had a substantial need for the reports or that she could not obtain the same information through other means, namely, through deposing the attorney and interviewing or deposing the employees with whom she spoke. Although the plaintiff claimed that the employees may be afraid to speak with her counsel out of fear of retaliation, her concerns were speculative and did not establish a substantial need and undue hardship. Finally, the expense of deposing witnesses was also insufficient to overcome the work product protection.

No waiver. The plaintiff also failed to show that the employer waived the work product protection despite her contention that it should not be allowed to rely on the attorney’s reports as part of its defense while simultaneously arguing that such information was not discoverable. The court agreed that the employer should not be permitted to use the investigations “as both sword and shield,” but there was no evidence that it was doing so in this case.

The plaintiff argued that the employer must be relying on the investigations because it denied both that it had notice of the harassment and took no remedial action and that it failed to investigate reports of discrimination. She reasoned that it had no factual basis to deny those allegations without relying on the outside attorney’s investigations. Additionally, she pointed to its reliance on the investigations in a related case in state court.

At oral argument, however, defense counsel expressly disclaimed any reliance on the investigations as a defense in this case and stated that the employer did not intend to rely on the outside attorney as a witness at trial. The employer also didn’t intend to elicit testimony from any witness as to whether it did or did not take action based on the outside attorney’s reports. Moreover, whether it intended to rely on the investigation in a related case did not affect their discoverability here.

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