More and more these days employers are doing their due diligence when it comes to complaints from an employee about employment discrimination in the workplace. When an employee makes a claim against its employer regarding employment discrimination one of the first logical steps is to investigate allegations made by employee to determine if there is any validity. In the context of these investigations, it is prudent for the employer to speak with an attorney to find out what would constitute employment discrimination under the law and the employer’s liability.

Under such circumstances where an employer contacts a lawyer or uses in house counsel to conduct all or part of an investigation to evaluate employee’s allegations of employment discrimination a tricky issue arises regarding the traditional rules of attorney client privilege and work product doctrine.

If a lawsuit is filed for employment discrimination an employer may assert attorney client privilege or work product doctrine when an employee/plaintiff requests discovery of any prelitigation investigations. However, if the prelitigation investigation is raised as a defense in employer/defendant’s answer to a complaint the attorney client privilege and work product doctrine might be waived. Thus, an employer may be ordered by a court to produce its prelitigation investigations to employee/plaintiff.

Attorney-Client Privilege

The attorney client privilege generally allows a client “to refuse to disclose, and prevent another from disclosing, a confidential communication between client and lawyer.” (Evidence Code § 954) The attorney client privilege applies to confidential communications within the scope of the attorney client relationship even if the communication does not relate to pending litigation; the privilege applies not only to communications made in anticipation of litigation, but also to legal advice when no litigation is threatened.

Work Product Doctrine

The attorney work product doctrine is the policy whereby any writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories in preparation for litigation is not discoverable under any circumstances. “The work product rule in California creates for the attorney a qualified privilege against discovery of general work product and an absolute privilege against disclosure of writings containing the attorney’s impressions, conclusions, opinions or legal theories.” (BP Alaska, supra, 199 Cal. App. 3d at p. 1250.)

Prelitigation Investigations

Investigations protected by Attorney Client Privilege and Work Product

An attorney hired by an employer to investigate the charges of discrimination is sufficient to support a claim of privilege, i.e., communication during lawyer client relationship. (Mitchell v. Superior Court, (1984) 37 Cal. 3d 591, 600)

However, a plaintiff will try to argue an attorney retained to investigate employee claims of discrimination is not acting as an attorney but as a fact finder and therefore attorney client privilege and work product doctrine are not applicable. California courts have disagreed with this argument and do not believe a court should give a plaintiff “carte blanche to an investigation file but rather base any ruling on the subject matter of each individual document.” (Wellpoint Health Networks, Inc, et al. v. Superior Court of Los Angeles County, 59 Cal. App. 4th 110, 122).

At this point, plaintiff bears the burden of showing the claimed privilege does not apply or an exception exists or there has been an expressed or implied waiver. (Lipton v. Superior Court (1996) 48 Cal. App. 4th 1599, 1619)

Investigations are not part of an employee’s personnel file

Labor code section 1198.5 provides every employer shall permit an employee to inspect such personnel files which are used or have been used to determine an employee’s qualifications for employment, promotion, additional compensation, or termination, or other disciplinary action. “However, while the statue mandates unconstrained employee access to personnel files, it does not express a legislative intention to overthrow the traditional protections afforded to attorney client communications and work product documents.” (Wellpoint v. Superior Court, supra. 59 Cal. App. 4th 124, 125) California courts have refused to allow this provision of the labor code to be applied as an exception to attorney client privilege and work product doctrine. (Id. at 125)

Investigations asserted as a defense to employment discrimination

An important component to discrimination cases is proof the employer had knowledge of the harassment. The employer may defend by pointing to prompt remedial action reasonably calculated to end the harassment. Thus, a great defense is to assert it made an investigation and took appropriate action to resolve any claim of discrimination.

There is a caveat to this defense, if the employer/defendant hopes to prevail by showing that it investigated employee’s complaint and took appropriate action from its findings, it has just put the adequacy of the investigation directly at issue. In this situation, California Courts have held the attorney client privilege and work product doctrine are waived. The California Supreme Court held a waiver is established by showing “the client has put the otherwise privileged communication directly at issue and that disclosure is essential for a fair adjudication of the action. (Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal. 3d 31, 40) The Appeals Court in Wellpoint stated more plainly; “[The employer/defendant] cannot have it both ways. If it chooses this course, it does so with the understanding that the attorney client privilege and work product doctrine are thereby waived.” (Wellpoint v. Superior Court, supra. 59 Cal. App. 4th 128)

Should employers be worried if their prelitigation investigation is put directly at issue in their defense of a claim, privileged information would be made privy to plaintiff? Many plaintiffs will point to Wellpoint to argue once findings of an investigation are used to support a defense to any allegations, any privilege is waived.

However, this is not exactly true. The Appeals Court in Kaiser Foundation Hospitals v. Superior Court of San Mateo County, (1998) 66 Cal. App. 4th 1217, held “once a defendant claims it has investigated a complaint of harassment and taken appropriate remedial action based on its own investigation, a plaintiff is not entitled to discover all communications involving the employer’s internal investigation, whether or not the investigation was conducted by a non-attorney and regardless of the employer’s invocation of the attorney client privilege with respect to non-attorney’s confidential communications with the employer’s counsel.” (Id. at 1223).

California Courts are not ready to give plaintiffs complete open access to an employer’s investigation file, but recognize an employer/defendant’s assertion of the attorney client privilege and work product doctrine is in direct conflict with plaintiff’s right to discovery and production of documents. In this situation the law attempts to find a balance between these competing interests in discovery. (See Kaiser v. Superior Court supra. 66 Cal. App. 4th 1228) The likely resolution will be creating a privilege log of documents sought to be protected and subject to review by the trial court in accordance with Code of Civil Procedure section 2031.

When asserting prelitigation investigations in defense of an employment discrimination claim, the employer runs the risk of waiving their protections by the attorney client privilege or work product doctrine. However, it does not mean the entire investigation must be turned over to the employee/plaintiff. Consult your counsel before treading into this arena.

This article appeared in the March 19, 2007, issue of the San Diego Business Journal.