Because the attorney-client privilege depends on the involvement of a lawyer and the work product doctrine protection depends on the anticipation of litigation, the availability of both protections depends on the factual context.
In Geller v. North Shore Long Island Jewish Health System, No. CV 10-170 (ADS)(ETB), 2011 U.S. Dist. LEXIS 129751 (E.D.N.Y. Nov. 9, 2011), the court analyzed both privilege and work product protection for documents created during defendant Health System’s investigation of sexual harassment. The court found the defendant’s compliance officer investigated the alleged harassment starting on July 28, 2009. The material she created did not deserve any protection until August 18, when defendant received a threatening letter from plaintiff’s lawyer. The material she created on that day deserved only work product protection. However, on August 19 the defendant retained Epstein Becker & Green to supervise the investigation. The court therefore found that materials created after August 19 deserved both privilege and work product protection. Significantly, the court found that both protections remained intact, because “defendant’s counsel has affirmatively represented to the Court that defendants have no intention of ‘using the investigation to avoid liability.'” Id. at *11.
Some courts would not have been as willing to find privilege protection for an ongoing investigation just because a lawyer stepped in to begin supervising it. Still, this case highlights the importance of a lawyer’s participation in analyzing privilege protection and anticipated litigation’s importance in analyzing work product protection.