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David C. Henderson, a member of the firm’s Labor, Employment and Benefits practice group, published “Investigations Can Capsize Attorney-Client Privilege” in Law360’s “Expert Analysis” section on December 11. The article discusses a recent federal court decision which sends a reminder that the attorney-client privilege can be waived inadvertently when the employer’s legal adviser becomes overly involved in the employer’s investigation. In the case, Koss v. Palmer Water Department, the federal district court disagreed with the employer’s claims 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 court reasoned 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.”

The article includes lessons provided by Koss for employers and their lawyers. One lesson is that, if an employer’s attorney becomes overly involved in a sexual harassment investigation, there can be a general waiver of attorney-client privilege and work product protection that is unintended when the investigation is offered as a defense to the sexual harassment claim. Further, the exact point at which such over-involvement will occur is unclear. David therefore notes that the Koss case is a strong reminder that, when defending a sexual harassment claim, employers and their legal counsel need to tread carefully to avoid inadvertently waiving the privileged nature of their communications generally. Also, when investigating such a claim, employers often would do well to build a “firewall” between their investigator and lawyer.

To view the article, click here.