The United States District Court decision issued on February 22, 2013, Walker v. N.H. Administrative Office of the Court (“AOC”), in which it ruled on what portions of an employer’s investigation file should be turned over to the plaintiff.  The case was filed by the Administrator of the estate of the former clerk of a circuit court in Littleton alleging that the employee, Michele Walker, experienced harassment, discrimination and retaliation so severe that it caused her to commit suicide.  The AOC,  to which Walker formally complained, hired counsel and an independent investigator to conduct an investigation into the allegations of workplace discrimination and harassment.

The plaintiff filed a motion asking for the complete file of the investigator.  The AOC claimed that documentation from the file including the investigator’s handwritten notes and communications between the investigator and the AOC’s attorney were protected from disclosure due either to attorney client privilege or because they were work product prepared in anticipation of litigation.  The court ruled that all but a small portion of the documents at issue were subject to  discovery.  The privileged documents included:

• Documents post-dating the investigation prepared in anticipation of litigation including portions of the investigation report and correspondence from the investigator contained her mental impressions and opinions.
• Email communications from the attorney for the AOC to the investigator giving advice about what might be subject to disclosure in future litigation.

Most of the investigation report including the factual summaries of witness interviews (including that of Walker) had to be produced.  The court ruled that because the plaintiff who was the primary witness was deceased, there was no way the estate could realistically obtain a substantial equivalent to the evidence being sought.  The court also determined that the AOC could not use its investigation as both a sword and a shield. The AOC  claimed in its defense that it conducted a prompt and thorough investigation of Walker’s allegations; it could not now claim that the documentation which memorialized the investigation was not subject to discovery.

Employers who commission investigations and investigators themselves should assume that investigation files and communications between investigator and employer representatives will be discoverable in future litigation.  If  one is going to seek to shield a particular document or category of documents from discovery, counsel should be included in the communication.  The documents should be marked  “Confidential/Attorney-Client Privileged.”   Efforts should be made to segregate privileged communications from the rest of the file and mark them as such.   This will not guaranty that the document will not have to be produced in the future,  but it might help to show that the intent in creating them was to prepare for a possible lawsuit.