In most situations, a client hiring a lawyer to conduct an investigation of some incident argues that the lawyer’s report deserves privilege protection. However, in some situations clients have the opposite incentive.
In Lerman v. Turner, Case No. 10 C 2169, 2011 U.S. Dist. LEXIS 715 (N.D. Ill. Jan. 5, 2011), Columbia College Chicago hired a lawyer from Schiff Hardin to investigate the college’s termination of a tenured professor. The college placed the Schiff Hardin lawyer’s report in the professor’s personnel file, which it then made available to the terminated professor. The professor argued that this waived the college’s privilege, triggering a subject matter waiver that entitled her to additional privileged documents on the same subject. To avoid this disaster, the college argued that the Schiff Hardin lawyer had acted merely as an investigator and not a legal advisor, so his report did not deserve privilege protection. The court agreed with the professor – pointing to the lawyer’s “Upjohn warnings” to an interviewee, his transmittal of the report to the college’s general counsel and other factors. Id. at *19. The court also agreed with the professor that the college’s waiver of the privilege triggered a subject matter waiver (although finding only a narrow scope of that waiver).
Strange situations like this do not frequently arise, but they usually reflect a client’s failure to properly protect privileged communications and later attempts to avoid a subject matter waiver.