When Does a Client Waive the Privilege Covering an Independent Consultant’s Investigation into Alleged Discrimination Claims?

August 23, 2006

Companies and other institutions accused of discrimination frequently hire independent consultants to investigate the claims. However, those clients should never assume that the investigator’s findings will remain protected.

In Austin v. City & County of Denver, Civ. A. No. 05-cv-01313-PSF-CBS, 2006 U.S. Dist. LEXIS 32048 (D. Colo. May19, 2006), the Denver Water Board hired an independent consultant to investigate the plaintiff’s claim of age and gender discrimination. Plaintiff sought discovery of the investigator’s report and materials, but the department resisted. The court found that the investigator acted essentially as an in‑house human resources employee, so that his material deserved privilege protection. The court then noted that the department had filed an affirmative defense claiming that it had “‘exercised reasonable care to prevent and promptly correct any unlawful behavior by its employees of which it was made aware.'” Id. at *3. Although the plaintiff had discussed “only in passing the issue of waiver,” the court found that this affirmative defense created a subject matter waiver that covered the investigator’s report and materials. Id. at *18.

Companies should not count on other plaintiffs raising this issue only “in passing.” They should remember that filing such an affirmative defense normally causes an implied waiver whose subject extends to such investigators’ materials.