Reliance on Internal Investigation as Affirmative Defense Effects Waiver Not Only of Report But Also Witness Interviews, Notes and Other Materials Protected by Privilege and Work Product

From Angelone v. Xerox Corp., 2011 U.S. Dist. LEXIS 109407 (W.D.N.Y. Sept. 26, 2011):

This Title VII employment discrimination action stems from plaintiff's employment with defendant Xerox. See Complaint (Docket # 1). Specifically, plaintiff alleges that she was discriminated against because of her gender, subjected to a continuing hostile work environment because of her sex, and retaliated against for engaging in protected activity. ***

In its Answer to plaintiff's Complaint, defendant asserted a variety of affirmative defenses, two of which are relevant here. As a Ninth Affirmative Defense, Xerox asserted that it "exercised reasonable care to prevent and to promptly correct any alleged harassment, discriminatory conduct or retaliation in its workplace." See Answer (Docket # 3). ***

With the instant motion to compel (Docket # 38), plaintiff seeks to compel production of all documents involving or relevant to Xerox's internal investigation of plaintiff's allegations. Plaintiff argues, inter alia, that "[b]y asserting the adequacy of the in-house legal department's internal investigation as an affirmative defense, Defendant has waived both attorney-client privilege and work product defenses with respect to that investigation." See Plaintiff's Memorandum of Law annexed to Docket # 40 at p. 5. In response and opposition, defendant argues that (i)"the attorney-client privilege applies because the documents reflect communications rendered for the purpose of obtaining legal advice," (ii) "Xerox has not waived the attorney-client privilege," and (iii) "the remaining documents on the privilege log are immune from disclosure because they are work product." See Defendant's Memorandum in Opposition (Docket # 43) at pp. 6-16. On April 20, 2011, the Court held a hearing and heard arguments from the parties. After the hearing, Xerox submitted for in camera review both redacted and un-redacted copies of the documents being withheld. ***

Reliance on the Faragher-Ellerth Defense: The ninth and tenth affirmative defenses alleged in Xerox's Answer are carefully and conspicuously couched in language which mirrors the Supreme Court's holdings in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Pursuant to Faragher and Ellerth, an employer faced with a hostile environment case may, under certain circumstances to avoid vicarious liability, affirmatively allege and prove that "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth, 524 U.S. at 765 ; Faragher, 524 U.S. at 807. By pleading the so-called Faragher-Ellerth defense in its Answer, Xerox has affirmatively and deliberately put its internal investigation of Angelone's workplace complaints at issue in this litigation.

The intersection of the Faragher-Ellerth defense and the attorney-client and work product doctrines has sometimes proven difficult for courts to navigate. However, the clear majority view is that when a Title VII defendant affirmatively invokes a Faragher-Ellerth defense that is premised, in whole in or part, on the results of an internal investigation, the defendant waives the attorney-client privilege and work product protections for not only the report itself, but for all documents, witness interviews, notes and memoranda created as part of and in furtherance of the investigation. See, e.g., Musa-Muaremi v. Florists' Transworld Delivery, Inc., 270 F.R.D. 312, 317-19 (N.D. Ill. 2010)(By asserting the Faragher-Ellerth defense, the employer "waives any attorney-client privilege that might apply to a defendant's investigation documents or communications."); Reitz v. City of Mt. Juliet, 680 F. Supp. 2d 888, 893-94 (M.D. Tenn. 2010)(employer's reliance on internal investigation of discrimination complaint waived the attorney-client privilege and work product protection for all documents underlying the report); E.E.O.C. v. Outback Steakhouse of Fla., Inc., 251 F.R.D. 603, 611-12 (D.Colo. 2008)(where defendants pled Faragher-Ellerth affirmative defense, they waived any applicable attorney-client privilege and work product doctrine regarding investigations into employees' complaints); Jones v. Rabanco, Ltd., No. C03-3195P, 2006 WL 2401270, at *4 (W.D. Wash. Aug. 18, 2006)(assertion of Faragher-Ellerth defense waived any applicable attorney-client privilege and "cause[d] any investigation and remedial efforts into the discrimination alleged in this case, in which Defendants engaged and in which their attorneys were involved, to become discoverable, despite any attorney-client privilege that may have normally attached to such communications"); Walker v. Cnty. of Contra Costa, 227 F.R.D. 529, 535 (N.D. Cal. 2005)(defendants waived any attorney-client privilege and work product protection for investigatory report prepared by attorney by asserting as a defense the adequacy of their pre-litigation investigation of plaintiff's discrimination claims); McGrath v. Nassau Cnty. Health Care Corp., 204 F.R.D. 240, 245-46 (E.D.N.Y. 2001)(defendant's invocation of the Faragher-Ellerth defense waived the work-product privilege); Brownell v. Roadway Package Sys., Inc., 185 F.R.D. 19, 25 (N.D.N.Y. 1999)(defendant waived attorney-client privilege as to attorney's investigatory documents by assertion of adequacy of investigation as affirmative defense).

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