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Employer must produce attorney’s investigation documents

A federal court judge has ordered a town that retained an attorney to investigate an employee’s hostile work environment complaints to respond to discovery requests about the investigation.

Plaintiff Jennifer Berry Brown brought claims under Title VII and the Family and Medical Leave Act against the Town of Front Royal, Virginia. After Brown raised her complaints about a hostile work environment to the town’s human resources department, HR initiated an investigation into those claims. At some point, the town hired attorney Julia Judkins as outside counsel to act as “an expert in personnel matters [and] to offer legal advice and counsel in the event it was needed.”

During discovery, Brown filed a motion to compel the town to produce certain documents and communications among the mayor, town councilmembers and Judkins.

Brown also sought to depose two witnesses about their communications with Judkins and any advice she provided related to Brown’s claims and subsequent firing.

A magistrate judge concluded that the town had waived the attorney-client privilege related to its investigation of Brown’s hostile work environment claim. The town filed objections to that order.

The town argued that Judkins did not “ever participate in the investigation, question witnesses, assemble facts, draw conclusions[,] or construct a remedial response” to Brown’s complaints. The town portrays Judkins’s role as merely reviewing the report “to provide legal advice and counsel related to the report which the Town — alone — prepared.”

But the court said that the magistrate judge’s factual findings about the extent of Judkins’s involvement in the town’s investigation were not clearly erroneous.

It noted that statements supported the magistrate judge’s factual conclusions that the town hired Judkins to investigate Brown’s complaints and relied on her conclusions about whether the alleged behavior constituted sexual harassment. The judge therefore correctly reasoned that the town’s preventative and corrective actions may determine the town’s liability for a hostile work environment claim. The finding of waiver is bolstered by other courts assessing hostile work environment claims under Title VII that routinely hold that the Ellerth/Faragher affirmative defense waives attorney-client privilege when outside counsel investigates harassment allegations.

The court found that the magistrate judge correctly recognized that the reasonableness of the town’s investigation was part and parcel to Brown’s hostile work environment claim, and that the town, had expressly put that investigation and Judkins’s advice related to it at issue.

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