Whistleblower Complaints Normally Do Not Deserve Privilege Protection

February 26, 2020

Many if not most corporate and other institutions have established whistleblower “hotlines” or otherwise encouraged whistleblowers to come forward with complaints. Depending on the complaint, work product protection frequently kicks in. But do such communications from an employee themselves deserve privilege protection? After all, the communications often involve corporate employees communicating legally significant facts to their superiors and sometimes to the corporation’s lawyers.

In Jett v. County of Maricopa, No. CV-19-02735-PHX-DLR 2019 U.S. Dist. LEXIS 205401 (D. Ariz. Nov. 25, 2019), plaintiff Jett claimed that defendant Maricopa County fired her for complaining about FLSA violations. The County moved to strike the paragraphs in her complaint describing her whistleblowing “conference call with the County’s in-house counsel” — during which she complained about the alleged violations. Id. at *3. The court rejected the County’s efforts, holding that: (1) “[n]othing in these allegations indicates that Jett reported this information for the purpose of soliciting legal advice”; and (2) “‘[c]ommunications that trigger retaliatory conduct are excepted from the privilege.'” Id. (quoting Biggs. v. City of St. Paul, Nos. 6:18-cv-506 & -507-MK, 2019 U.S. Dist. LEXIS 37996 (D. Or. Mar. 8, 2019)).

Companies normally should assume that whistleblower complaint communications will not deserve privilege protection.