Work Product Is Not a Sword and Shield
By In Reitz v. City of Mt. Juliet, the Middle District of Tennessee held that an employer’s reliance on an investigative report in pleadings before the court waived the attorney-client privilege and work-product protection for the underlying interview memoranda and notes authored by the internal investigator. Reitz complained of a hostile work environment and gender discrimination while working for the City of Mt. Juliet. In response to these complaints, the City hired a law firm to conduct an internal investigation regarding the allegations, which resulted in dozens of interviews and a 17-page report detailing the firm’s findings that no discrimination had occurred. When Reitz later sued, the City used this report to raise the Faragher-Ellerth affirmative defense, whereby an employer can show that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior. This defense knocked out Reitz’s hostile work environment claim.
The Middle District held that the City was not entitled to block discovery of the underlying attorney work product that resulted in the investigative report. The Court reasoned that a party cannot use such a report as a sword (such as with the City’s Faragher-Ellerth defense), then later seek to shield discovery of material underlying the report. When a party uses the content of privileged communications offensively, the other party is entitled to test and try to impeach the material.
Even though Reitz’s hostile environment claim had already been dismissed, the City no longer needed to use the report, and the underlying notes and material would not be admissible at trial, Reitz was still entitled to them. The Court held that the pertinent question was whether the underlying material was discoverable (that is, reasonably calculated to lead to the discovery of admissible evidence), not whether the material was admissible itself. And, once the City waived the privilege associated with the report, the waiver was complete and final.
I think this is the right result. Although the Court did not make this analogy in its opinion, to me, this is akin to an expert report situation. A party cannot submit an expert report and then deny the opposing party an opportunity to test that report by reviewing the experts underlying work product. And in this case, the Court ultimately split the baby somewhat by ruling that only the “fact” work product created by the law firm was discoverable-notes containing the lawyers’ mental impressions and opinions was deemed not relevant to the plaintiff’s remaining claims.
For more information, see Reitz v. City of Mt. Juliet, 2010 WL 56081 (M.D. Tenn. Jan. 5, 2010).
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