Asserting an Affirmative Defense in a Sexual Harassment Case Could Waive a Company’s Attorney-Client Privilege

January 31, 2002

Courts have long recognized that a client can impliedly “waive” the attorney-client privilege by seeking some advantage from reliance on the fact of a privileged communication rather than its substance. The classic example is a litigant’s assertion of “advice of counsel” as an affirmative defense to a tort claim. Courts universally hold that asserting such an affirmative defense waives the privilege protection that would otherwise cover pertinent discussions.

In McGrath v. Nassau Health Care Corp., 2001 U.S. Dist LEXIS 15891, at *4 (E.D. N.Y. Sep. 28, 2001), a company sued in a sexual harassment case filed an affirmative defense that it was “not liable because it exercised reasonable care to prevent and promptly correct any sexually harassing behavior.” Although the company did not specifically rely on its outside counsel’s investigation of the sexual harassment charge, the court found that the company’s affirmative defense “implicitly” waived any attorney-client privilege or work product protection that would otherwise have covered the outside counsel’s report, and even notes that the outside counsel made during the investigation. This recent decision represents an expansive view of the implied waiver doctrine.

Lawyers who represent companies should be familiar with the breadth that some courts give the implied waiver doctrine. Otherwise, asserting an affirmative defense could result in an order to produce protected documents and testimony.