A female employee has just complained to HR that the CEO harassed her. This complaint is the third one against the same alleged harasser. So, you hire an outside attorney to conduct a full investigation, anticipating that there might be subsequent litigation. The attorney investigates and furnishes a written report of her findings and conclusions.
If the internal sexual harassment complaint evolves into a lawsuit against the company and the plaintiff requests a copy of the written report, do you have to turn it over?
The report is probably protected.
One federal court recently held (here) that the document was not discoverable (that means it has to be provided to the other side). Here’s why:
When an attorney prepares a written report following a workplace investigation, there are two legal components, if the attorney drafts the document in anticipation of litigation: (1) fact work product, and (2) opinion work product.
The latter is rarely discoverable. (More on this in a bit). The former is discoverable if the plaintiff shows a substantial need for the materials and an inability to obtain their equivalent through other means absent undue hardship.
So, what if the plaintiff limits her request to the factual summaries that appear in the report? In this particular case, no dice:
“Plaintiff fails to show at this time that she has a substantial need for the materials and is unable to obtain their substantial equivalent elsewhere. At oral argument, Plaintiff’s counsel conceded that Defendant has now disclosed the names of the employees whom (the attorney) interviewed. (The attorney) herself is available to be deposed, and her deposition has already been scheduled. Plaintiff has not shown, therefore, that she has a substantial need for the reports or that she cannot obtain the same information through other means, namely, through deposing (the attorney) and interviewing or deposing the employees with whom she spoke. “
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Some additional considerations
Ah, so while the report itself may be off-limits, the attorney whom the company retains to investigate may still be deposed. All the more reason to ensure that the attorney-investigator does not work for the same law firm that the company wants to defend it should the internal complaint evolve into a lawsuit.
But, the defendant may decide to use the report as either a sword or shield in the ensuing litigation. In that case, not only are the factual summaries discoverable, but the entire document may be too.
Should any of this stop you from using an outside attorney to investigate an internal complaint of sexual harassment? Heck no! However, this is a consideration to, well, consider.
Want to know more about conducting workplace investigations? I have a training module that includes whether and when to use an outside investigator. We also go through how to conduct a workplace investigation if you decide to handle the matter in-house.Email me for the details.
This article first appeared on The Employer Handbook.