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.
