Are Internal Investigations of Harassment Privileged?

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When an employer is put on notice of a claim of discrimination or harassment by an employee, it has an obligation to promptly investigate the matter and take appropriate corrective action. When such an investigation occurs, and it involves an attorney, it raises a question as to whether the investigative findings are subject to the attorney-client privilege or work product doctrine, if later requested in a civil suit.

The attorney-client privilege protects a client from being compelled to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client. The purpose of the attorney-client privilege is to encourage clients to make full disclosure to their attorneys. Work product, or legal strategy prepared by or at the direction of an attorney in reasonable anticipation of litigation, is also generally protected from disclosure. This includes documents prepared by a non-attorney if the work was performed at an attorney’s direction and in reasonable anticipation of litigation. Such documents are protected from disclosure unless the party seeking discovery has need of the material and is unable to obtain the substantial equivalent without undue hardship – or, in other words, the party cannot obtain similar information through ordinary investigative techniques and discovery procedures.

In Upjohn Co. v. UnitedStates, 449 U.S. 383 (1981) the United States’ Supreme Court issued an opinion which is often regarded as the leading authority on the scope of the attorney-client privilege within the business world. In Upjohn a pharmaceutical manufacturing firm conducted a confidential investigation and internal audit which revealed that potentially illegal payments had been tendered to foreign officials in exchangefor business. After Upjohn voluntarily notified the IRS of the illegal payments, the IRS thensought certain information collected during Upjohn’s investigation, includinginternal questionnaires sent to managerial employees. However, Upjohn asserted that the documents were protected by the attorney-client privilege and work product doctrine and withheld them.  The Supreme Court sided with Upjohn and held that, while all privilege determinations were to be made on a case-by-case basis, “communications by Upjohn employees to counsel are covered by the attorney-client privilege… so far as the responses to the questionnaires and any notes reflecting responses to interview questions are concerned.” Id. at 396-97. Essentially, Upjohn established a flexible framework to establish when employee communications with corporate counsel in the course of investigations will qualify as protected attorney-client exchanges.

Specifically, the Supreme Court held the attorney-client privilege would apply when “[t]he communications concerned matters within the scope of the employees’ corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice.” Id. at 394.  These types of communications are colloquially referred to as “Upjohn Warnings,” or “Corporate Miranda Warnings.” 

Accordingly, to maintain the confidentiality of such investigative inquiries involving counsel, it is prudent for employers to advise employees that they are being questioned so that the employer may obtain legal advice. Without such warning, the investigation may not be privileged or deemed as work product.

At Wilson McCoy, P.A. we have experience with assisting employers with conducting internal investigations following a claim of harassment or discrimination as well as advising employees of their rights when they are being interviewed under such circumstances. If you are an employer or employee and would like to be counseled on such matters, please contact us at (407) 803-5400 or [email protected], for an analysis of your situation and to schedule a consultation.