Clients relying on an investigation’s result to gain some advantage understandably trigger a subject matter waiver. But some courts recognize that those clients may still claim privilege for some related communications.
In Thomas v. Marshall Public Schools, — F. Supp. 3d —, 2023 U.S. Dist. LEXIS 156933 (D. Minn. Sept. 6, 2023), defendant school system indicated that it would rely on outside lawyers’ investigation report to defend against the principal’s allegation that she was improperly demoted. The defendant school district produced the investigation report, and the court allowed the plaintiff to depose the investigating outside lawyers. But the court prohibited plaintiff from inquiring into the outside lawyers’ “legal advice . . . regarding whether to conduct the investigation, and how to respond to the investigation findings and conclusions.” Id. at *32-33. The court noted that “[t]hese topics are not addressed in the Investigation Report.” Id.
Corporations undertaking an investigation upon which they expect to rely should keep in mind this critical distinction. As long as the investigation report does not include them, the privilege should protect lawyers’ advice about whether to investigate, and how to react to the investigation’s results. But because not all courts “get it,” lawyers should watch their language in such communications in case a court uses too broad a brush in applying the subject matter waiver doctrine.