Communications between an attorney and its clients are privileged, and must not be shared in discovery. However, when that privilege is waived, communications between a client and the attorney lose their protection and become discoverable. That is what a U.S. District Court Judge concluded in a lawsuit filed in the U.S. District Court for the Western District of Virginia.
In Jennifer Berry Brown v. Town of Front Royal, VA, Civil Action 5:21-cv-00001 (W.D. Va. May. 3, 2022), U.S. District Judge Cullen ruled that the Town of Front Royal, Virginia (the “Town”) waived its attorney-client privilege related to its counsel’s participation and advice in a sexual harassment investigation. The case involves a former employee who claims she was subjected to sexual harassment and was terminated from her employment in retaliation for filing a complaint regarding the harassment. The Town’s HR department investigated the sexual harassment allegation and retained an attorney to offer legal advice and counseling during the investigation.
In discovery, the Plaintiff requested communications with counsel related to the investigation. The Town objected to the discovery requests, citing privilege, and a motion to compel was filed. A magistrate judge ruled in favor of the Plaintiff and ordered the communications to be produced. The Town thereafter appealed the magistrate’s decision to the assigned judge.
In affirming the magistrate’s order, Judge Cullen recognized the principle that the attorney-client privilege cannot act as both a shield and a sword. See e.g. United States v. Workman, 138 F.3d 1261 (8th Cir. 1998); In re: United Shore Financial Services, LLC, No. 17-2290 (6th Cir. Jan. 3, 2018); CR-RSC Tower I, LLC v. RSC Tower I, LLC, 429 Md. 387 (2012). In essence, the doctrine states that when privileged information is part of the issue in a lawsuit, the information loses its privilege.
In this case, the hostile work environment claim created that conflict. In order to prove a hostile work environment claim based on sexual harassment, a plaintiff must show (1) they were subjected to unwelcome conduct; (2) based on the plaintiff’s sex; (3) the conduct was sufficiently severe and/or pervasive; and (4) the conduct was imputable to the employer. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015). The fourth element is what caused the waiver of attorney-client privilege in this case as the defense to that element involves the investigation in which the attorney participated.
In essence, because the Town’s attorney was involved in the investigation into the Plaintiff’s sexual harassment allegation, and because she reviewed the report and offered advice as to its findings, her communications go to the core of the Town’s defense to the hostile work environment claim. The findings and conclusion of that investigation and/or any reasonableness of any remedial measures would be at issue in the lawsuit. The Town could not rely on its use of an attorney to defend the elements of the hostile work environment (the sword), but also claim the communications it relied upon are privileged (the shield). In conclusion, the judge affirmed the magistrate’s order and ruled that communications involving the Town’s attorney related to the sexual harassment allegation must be produced in discovery.
This case is an isolated example due to the nuances of a hostile work environment claim. However, the lesson is valuable. Employers often seek assistance from counsel in investigating allegations. If the primary purpose of the engagement is to seek legal advice from counsel, the communications are privileged. However, when an attorney takes an active role in the investigation itself it could lead to situations where your communications lose their privilege.