Named for two United States Supreme Court cases, the Faragher-Ellerth doctrine creates an “at issue” waiver if a company defending a sexual harassment or similar claim asserts as a defense that it conducted an adequate investigation and took appropriate remedial steps. To the extent that a lawyer participates in the investigation, communications to or from that lawyer generally lose privilege and work product protection.
In McKenna v. Nestle Purina PetCare Co., No. 2:05-cv-0976, 2007 U.S. Dist. LEXIS 8876, at *11 (S.D. Ohio Feb. 5, 2007), the court took a narrow view of the waiver’s scope: “If an attorney had been consulted about an investigation but did not himself or herself conduct interviews, make disciplinary decisions, or otherwise participate in the investigation itself, the contents of the attorney’s advice to the client about the investigative process and the decisions made by the employer remain privileged.” Even under this forgiving approach, the obvious inference is that a lawyer’s participation in interviews or in disciplinary decisions might trigger a waiver that includes the lawyer’s advice to the client about the investigation and any disciplinary decisions.
Before any lawyers involve themselves in any investigations or disciplinary decisions upon which their client will rely in defending a sexual harassment or similar case, lawyers should remember the Faragher-Ellerth doctrine.