Defendants in hostile work environment cases impliedly waive the privilege and work product protections covering corporate investigations by raising the affirmative defense that they exercised “reasonable care” to prevent and correct sexually harassing behavior. However, sometimes it can be difficult to determine the scope of the implied waiver.
In EEOC v. Rose Casual Dining, L.P., No. 02-7485, 2004 U.S. Dist. LEXIS 1983 (E.D. Pa. Jan. 23, 2004), the court distinguished between a restaurant’s internal investigation conducted before the plaintiff was terminated, and a later investigation conducted by the restaurant’s outside lawyer after the restaurant received a letter from the fired employee threatening litigation. The court held that the work product doctrine did not cover any documents generated during the former investigation (because of the implied waiver), while the doctrine did protect documents generated during the latter investigation. Because the restaurant only generated witness statements as part of the second investigation, it could withhold them from discovery.
Companies interested in relying on the “reasonable care” affirmative defense in hostile work environment cases should carefully analyze the scope of the resulting implied waiver – and should consider starting a second investigation if circumstances warrant.