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.

By contrast, a Utah employer, Midwest Commercial Interiors, secured privilege protection for its outside counsel’s investigation of an employee’s harassment complaint.  Tingey v. Midwest Office, Inc., No. 1:22-cv-00145-TC-JCB, 2024 U.S. Dist. LEXIS 22445 (D. Utah Feb. 7, 2024).  And the judge’s opinion, available here, offers practical and persuasive lessons for the privilege victory and, when contrasted to the North Carolina situation, provides strategic lessons for those seeking access to the investigations.  Let’s discuss it.

Other Similar Incidents and a Mulligan

A former account manager at MWCI 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 MWCI’s investigation into harassment claims of another employee, E.S.  MWCI sought a protective order, available here, but argued only that the investigation-related documents, prepared by outside counsel, were nondiscoverable because they were disproportionate to the case.  MWCI did not assert a privilege objection.

But at the end of oral argument, MWCI mentioned that the attorney–client privilege also sheltered outside counsel’s E.S. investigation from disclosure.  The judge, apparently in a gracious mood, gave MWCI a mulligan, which sometimes happens, to submit supplemental briefing on the privilege issue.

Declarations and a Response

And submit it did.  MWCI, clearly recognizing that it had the burden of proving that its lawyer conducted the investigation for legal-advice purposes, submitted the declaration of its partial owner.  The declaration, available here, stated succinctly 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.”

That’s pretty strong, but the outside lawyer’s declaration, available here, surpassed it.  As to the purpose of his retention, the lawyer said this—

In an area where declarations are often conclusory, this one was deliberately specific.  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, available here, unfortunately contained little evidentiary rebuttal.  The brief mentioned that MWCI maintained a policy mandating investigations of sexual-harassment complaints, an argument that won the day in the North Carolina decision but did not expound on that aspect.  There was no deposition testimony of MWCI employees discussing its traditional implementation of this policy; no evidence of the engagement letter between MWCI and its outside counsel, and no evidence that may have countered MWCI declaration testimony.

Ruling

The court appropriately 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, it relied upon this statement from a Seventh Circuit opinion—

And relying upon MWCI’s sworn declarations—for there was no countering evidence—and an in camera review, the court easily found that MWCI proved that its investigation into E.S.’s allegations were legal-advice related.  To be sure, 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.

Take-Aways

For employers, MWCI’s supplemental handling of its privilege objections offers a good model to follow.  It supplied testimony from an executive and the lawyer to describe the investigation’s purpose. And the declarations were specific, not conclusory.  For employees seeking OSI investigations, the North Carolina case supplies the better model.  While an insurance-coverage case, the opinion shows that evidence of a mandatory-investigation policy coupled with employee testimony about that policy may overcome even the declaration of outside counsel.