One might think that a corporation or government entity would always trigger a subject matter privilege waiver by disclosing an internal investigation report. But subject matter waiver risks have been receding.
In Hawa v. Coatesville Area School District, Civ. A. No. 15-4828, 2016 U.S. Dist. LEXIS 122912 (E.D. Pa. Sept. 12, 2016), defendant school district released its investigation report into racist text messaging among administrators. Not surprisingly, plaintiffs claimed a waiver, and sought all related documents and privileged communications. The court rejected plaintiffs’ efforts, noting that “[t]he ‘central element’ in determining whether a partial waiver exists is the question of fairness.” Id. at *6 (citation omitted). The court noted that plaintiffs “have not argued that [defendant] has made any strategic use of the Report in this litigation, that it relies on the Attorneys’ investigation as a form of defense in this action or that it has ‘made factual assertions, the truth of which can only be assessed by examination of the privileged communications.'” Id. at *7 (citation omitted). The court also concluded that plaintiffs could obtain “non-privileged materials the Attorneys collected in their investigation . . . through ordinary discovery addressed to the materials’ original sources.” Id. at *7-8.
Some courts might find that such a release constitutes an effort to gain some advantage in the “court of public opinion,” but cases like this continue the trend toward courts’ rejection of broad subject matter waivers.