Privilege Issues In High-Profile Corporate Sexual Harassment Case: Part II

January 22, 2020

Last week’s Privilege Point described two favorable analyses from a Southern District of New York decision (Judge Gorenstein) assessing defendant Barnes & Noble’s privilege assertions covering its investigation and later firing of its CEO for sexual harassment. Parneros v. Barnes & Noble, Inc., 382 F.R.D. 482 (S.D.N.Y. 2019).

Third, the court addressed fired CEO Parneros’s argument that the investigation-related documents “are not privileged because they were created for business purposes, rather than for legal purposes” – noting that the Barnes & Noble policy “requires that all complaints of alleged sexual harassment be investigated.” Id. at 495. The court rejected Parneros’s argument, holding that “[t]he mere fact that there was a business benefit obtained from conducting the investigation does not detract from the circumstances here indicating that the predominant purpose of the investigation was to gather facts for the General Counsel so he could give legal advice to the corporation.” Id. This is a very favorable standard, perhaps based in part on the high-level nature of the investigation and outside counsel Paul Weiss’s involvement. Fourth, the court addressed fired CEO Parneros’s complaint that neither he nor his Executive Assistant were given Upjohn warnings before they were interviewed by the company’s General Counsel and the Senior VP of Corporate Communications and Public Affairs – thus aborting any privilege protection for the interviewers’ notes of that interview. The court rejected Parneros’s argument, noting that “courts have found the attorney-client privilege to shield notes of interviews undertaken as part of an internal investigation without discussing whether an Upjohn warning was first given.” Id. at 496. Interestingly, the court did not address the privilege’s applicability to the interview itself.

The next two Privilege Points will describe other favorable language from this significant case.