Showing posts with label attorney client privilege. Show all posts
Showing posts with label attorney client privilege. Show all posts

Tuesday, July 9, 2019

Workplace Investigation Cannot Be Both Sword and Shield


Last week, the Portage County Court of Appeals issued an opinion addressing the confidentiality of workplace investigation notes, reports, recommendations and recordings of witness interviews when the employer’s attorney conducted the investigation and interviews.  Smith v. Technology House, Ltd., 2019-Ohio-2670.   The defendant employer had broadly asserted its Faragher/Ellerth affirmative defense of taking prompt remedial action, but had not specifically cited to its attorney’s investigation as the basis for that defense.  Nonetheless, the trial court found that the interview recordings, report and recommendations should be produced in discovery.  The Court of Appeals reversed in part on the grounds that the employer had not specifically waived attorney-client privilege or yet asserted that the investigation was the basis for its defense, but held that the recording of the plaintiff’s interview must be produced because she was clearly adverse to the employer at the time and had her own attorney.  It also ordered an in camera inspection of the investigation materials to determine what else may be outside privilege and work product protection because it predated the investigation, etc.  Finally, it noted that privilege may not be used as both a sword (i.e., defense) and shield (confidential). 


According to the Court’s opinion, the plaintiff alleged that she complained about sexual harassment.  The employer, fearing litigation, immediately retained counsel to conduct an investigation, which began the following day.  When the plaintiff was brought into a room with the company’s attorney, she left the room to contact her attorney and then informed the employer’s attorney that she was represented.  He still interviewed her, a few managers and a few hourly employees.  All of the interviews were apparently recorded.  When litigation commenced, the plaintiff sought during discovery a copy of the interview recordings of her and her non-supervisory co-workers as well as any notes and documents related to those interviews.  The employer responded that the information was protected by attorney-client privilege and the work product privilege.   The trial court granted the plaintiff’s motion, but the discovery order was broader than the request in that it ordered the production of all recordings and documents related to the investigation.  The defendant was also ordered to correct its discovery responses to identify the attorney who conducted the investigation.   The employer appealed the discovery order.


The employer pointed out that the Ohio Supreme Court has found workplace investigations by attorneys to be covered by the attorney-client privilege.   Therefore, the trial court’s broad order compelled the production of materials that were protected by privilege.   Nonetheless, the Court found that not everything related to the investigation was privileged.  “Documents and records whose existence preceded a factual investigation or were created independent of such investigation, i.e., independent of any communication between attorney and client, would not be protected by the attorney client privilege.”


“Also, the identity of persons who participated in the investigation is not covered by the privilege.”  Therefore, the attorney’s participation in the investigation is not confidential.

Further, the recording of the interview with the plaintiff was not protected by privilege because she was, by then, an adverse party with her own attorney.


Finally, the attorney-client privilege does not protect the recording of the interview with Smith as this interview may not properly be said to have occurred within the context of the attorney-client relationship.  In the case of a corporate client, Ohio cases have generally held that the privilege extends to communications between counsel and employees of the corporate client.  . . . In light of the foregoing, Technology House could not reasonably expect that the substance of the interview would have the character of a confidential communication between an attorney and client which underlies the reason for the privilege.  At the time of Smith’s interview, a de facto adversarial relationship existed between the parties and, therefore, the substance of that interview falls outside the scope of the privilege.


The Court also found that the attorney’s assessment and materials about the plaintiff’s interview would be protected as work product.   However, the application of privilege or work product to a particular document requires an analysis of the particular document and that was not possible on the current record because the employer failed to provide or produce a privilege log describing the documents being withheld as privileged and work product.


Upon remand, the trial court of necessity must either conduct an in camera review of the compelled discovery to determine whether the attorney-client privilege and work-product doctrine exempts them from discovery or require the production of description of the documents sufficient to make such a determination, noting that the following types of materials are not privileged: documents and records whose existence preceded Attorney Thompson’s factual investigation or were created independent of that investigation (supra at ¶ 24); the identity of persons who participated in the investigation (supra at ¶ 25); and any recordings or transcripts of the substance of the interview with [the plaintiff].


The Court also rejected the plaintiff’s assertion of waiver as premature on the current record.  The plaintiff argued that the employer’s assertion of its Faragher/Ellerth defense waived privilege and work product protection for the investigation. 


Although no Ohio court has adopted this position, it has been held in other jurisdictions that the assertion of the Faragher/Ellerth defense effects a waiver of any privilege attaching to a party’s investigation of the alleged harassment.  “When an employer puts the reasonableness of an internal investigation at issue by asserting the Faragher/Ellerth defense, the employer waives any privilege that might otherwise apply to documents concerning that investigation,” including “‘not only the [investigative] report itself, but [ ] all documents, witness interviews, notes and memoranda created as part of and in furtherance of the investigation.” . . . .


The issue of whether Technology House and Gear waived the privilege attaching to Attorney Thompson’s investigation by asserting a Faragher/Ellerth defense may be resolved by recourse to “[o]rdinary waiver principles” and the “animating maxim that the privilege cannot ‘be used as both sword and shield.’”  In re Itron, Inc., 883 F.3d 553, 558 (5th Cir.2018).  That is: “when a party entitled to claim the attorney-client privilege uses confidential information against his adversary (the sword), he implicitly waives its use protectively (the shield) under that privilege.”  (Citation omitted.)  Id.  


Accordingly, courts do not find a waiver of privilege unless a party indicates its reliance  on a particular investigation in its assertion of the Faragher/Ellerth defense.  The “clear majority view” is that the defense must be “premised, in whole * * * or [in] part, on the results of an * * * investigation.”  . .  . . “This holding aligns with the numerous cases across jurisdictions finding waiver ‘when a client asserts reliance on an attorney’s advice as an element of a claim or defense,’ * * * and the many dozens of cases finding no waiver when no such reliance has occurred.”


In the present case, Technology House and Gear’s assertion of the Faragher/Ellerth defense does not acknowledge the existence of much less indicate reliance upon Attorney Thompson’s investigation.  The mere assertion that they exercised “reasonable care to prevent and promptly correct any alleged sexually harassing behavior” does not constitute a waiver of any privilege applicable to the investigation.


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Tuesday, April 21, 2009

Supreme Court: Outside Attorney's Confidential Investigation Report is Exempt from Ohio's Public Records Law

Today, a per curiam Ohio Supreme Court dismissed a mandamus action brought by the Toledo Blade seeking the investigation report written by a private attorney on behalf of a governmental body on the grounds that the report was exempt from Ohio’s public records laws because of the attorney-client privilege. State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., Slip Opinion No. 2009-Ohio-1767. The report had been prepared after the Toledo mayor alleged that the port authority’s president was having an extramarital affair with the port authority’s chief outside lobbyist in violation of authority rules, etc. The port authority retained its outside law firm to conduct an investigation, which included reviewing documents and interviewing employees and other witnesses. The attorney prepared a report, which was distributed to each member of the authority’s board. “The board members were informed that the report was confidential and could not be shown or disclosed to any third party. Following a subsequent special session, copies of the report were returned to the law firm.” The authority then fired the president.

In response to the newspaper’s public records request, the authority provided copies of all documents reviewed by the attorney in the course of her investigation, but did not produce a copy of the report itself, claiming attorney-client privilege. According to the Court, “R.C. 149.43(A)(1)(v) excepts ‘[r]ecords the release of which is prohibited by state or federal law” from the definition of “public record.’ ‘The attorney-client privilege, which covers records of communications between attorneys and their government clients pertaining to the attorneys’ legal advice, is a state law prohibiting release of these records.’”

The Court rejected the newspaper’s argument “that the factual portions of the investigative report are not covered by the attorney-client privilege, because they do not constitute legal advice.” The common law attorney-client privilege “protects against any dissemination of information obtained in the confidential relationship. . . . In fact, most courts that have expressly addressed the issue of whether an attorney’s factual investigations are covered by the attorney-client privilege have determined that such investigations may be privileged. . . . For example, in Upjohn v. United States , 449 U.S. 383, 390-39, the United States Supreme Court recognized that the “first step in the resolution of any legal problem is ascertaining the factual background and sifting through facts with an eye to the legally relevant.” “[T]he Upjohn pronouncement hardly stands alone. Courts have consistently recognized that investigation may be an important part of an attorney’s legal services to a client.” The Court concluded that “the relevant question is not whether [an attorney] was retained to conduct an investigation, but rather, whether this investigation was ‘related to the rendition of legal services. . . . The attorney-client privilege “does not require the communication to contain purely legal analysis or advice to be privileged. Instead, if a communication between a lawyer and client would facilitate the rendition of legal services or advice, the communication is privileged.”

In short, “[t]he [attorney-client] privilege applies when legal advice of any kind is sought from the legal advisor in that capacity and the client’s confidential communication relates to that purpose.”


Before the attorney-client privilege applies to communications relating to investigative services, the client for whom the investigation was conducted must show that other legal advice or assistance was sought and that the investigation conducted was integral to that assistance.” After applying this test to the facts here, it is manifest that the factual investigation conducted by attorney Grigsby was incident to or related to any legal advice that the attorneys hired by the port authority would give concerning the mayor’s allegations of misconduct by the port authority president. More specifically, the attorney’s investigation required her to draw upon her legal training and experience as well as her knowledge of the law governing the port authority and its policies and personnel. Both the port authority and its outside counsel knew that the investigation was replete with various legal issues and consequences that would be better resolved by the port authority employing its long-time attorney to conduct the investigation and prepare the report. Legal issues included interpretation of Hartung’s employment contract, an analysis of ethics law and criminal law, potential tort claims by Hartung and Teigland, and the construction of a confidentiality provision in the settlement agreement concerning a previous port authority investigation. Legal analysis facts in the investigation is integrated throughout the report.


Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1767.pdf

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.