Companies sued by their employees in a sexual or racial harassment case sometimes rely on what is called the Faragher-Ellerth affirmative defense – under which the company can win the case by showing that it exercised “reasonable care” to investigate the harassing conduct and took prompt remedial measures. Not surprisingly, a company retaining a lawyer to conduct such an investigation cannot withhold otherwise protected investigation-related documents if it relies on this defense.
In Reitz v. City of Mt. Juliet, Case No. 3:09-cv-0728, 2010 U.S. Dist. LEXIS 509 (M.D. Tenn. Jan. 5, 2010), Reitz filed a sexual harassment and retaliation claim against the City of Mt. Juliet (her former employer). The City relied on an outside Nashville law firm to conduct an investigation, and successfully obtained summary judgment on the harassment claim based on the Faragher-Ellerth affirmative defense. When Reitz moved forward with discovery on her remaining retaliation claim, the City argued that “plaintiff no longer needs to examine the depth of the defendant’s investigative efforts.” Id. at *15. The court found this point “irrelevant,” because “[h]aving previously decided to rely on the investigation,” the City “cannot now ‘unwaive’ privilege and work-product protection.” Id. Fortunately for the City, the court limited the waiver to fact work product, and allowed the City to redact the Nashville lawyer’s opinion before producing documents to Reitz.
The Faragher-Ellerth doctrine involves what is called an “at issue” waiver – triggered by taking a position in litigation, rather than by (1) actually disclosing protected communications or documents, or (2) explicitly relying on protected communications (such as asserting “advice of counsel”). These are the most frightening types of waivers, because they are not initially obvious, and because litigants cannot control how far the waiver extends.