An Employer Waives The Attorney-Client Privilege If Its Attorney Was 'Part And Parcel' Of The Sexual Harassment Investigation Offered In Defense

Most employers, particularly in Massachusetts, understand the basics about sexual harassment claims. They know that an employee's sexual harassment allegations have to be investigated, that a reasonable investigation can be a defense for the employer, that legal advice related to an employer's investigation and follow up actions can be crucial, and that the privileged nature of advice from the employer's lawyer generally should be guarded. It is in that context that a recent federal court decision sends a chilling reminder that the attorney-client privilege can be waived inadvertently when the employer's legal advisor becomes overly involved in the employer's investigation.

The case is Koss v. Palmer Water Department.1 When the plaintiff in Koss sued on a claim of sexual harassment, her employer tried to defend itself, at least in part, by asserting that (a) it had exercised reasonable care to prevent and promptly correct the alleged harassing behavior, and (b) the plaintiff had failed to take advantage of available preventive or corrective opportunities to avoid harm.2 The employer also claimed, however, that it did not have to produce all of its documents relating to its investigation of the sexual harassment complaint because some of them were protected by the attorney-client privilege and work product doctrine.

The federal district court disagreed. Relying on opinions from other federal districts, the Koss court held that attorney-client privilege and work product protection had been waived not only for the employer's investigation report but also for "all documents, witness interviews, notes and memoranda created as part of and in furtherance of the investigation," including direct communications between the investigator and the attorneys who were advising the investigator. The court's reasoning was that, "although not personally conducting interviews, [the advising attorneys] not only directed and collaborated with [the investigator] but exercised significant control and influence over him throughout the investigation." Thus, from the standpoint of the court, the attorney-investigator communications were "part and parcel of the investigation which goes to the heart of the Defendants' affirmative defense."

While the Koss court's description of the waiver of privilege is broad, some limits on the ruling are discernible. Koss does not say that attorney client privilege and work product protections are waived whenever an employer's lawyer...