Defendants in employment cases frequently file boilerplate affirmative defenses, such as a good faith effort to comply with applicable laws, etc. If the plaintiff discovers that the defendant was being advised by its lawyers during the pertinent time, can he or she point to such affirmative defenses in seeking access to the defendant’s privileged communications?
In Frazier v. Board of County Commissioners, Civ. A. No. 08-cv-02730-WYD-BNB, 2010 U.S. Dist. LEXIS 14785 (D. Colo. Feb. 3, 2010), a plaintiff alleging a racially hostile work environment pointed to the defendant county’s affirmative defenses in seeking such access. However, the county explicitly disclaimed any reliance on advice of counsel or on any privileged communications. Based on these assurances, the court found that the county had not triggered an implied or an “at issue” waiver by asserting the affirmative defenses.
Although defendants in employment cases (and in other cases) should carefully consider what affirmative defenses to assert, most courts allow them to later disclaim any reliance on legal advice – thus forestalling any discovery into privileged communications.