If you do not already follow Lorene Schaefer and the Workplace Investigations Group, I recommend doing so. This post is a limited response to Lorene’s post on the subject. There, she comments on journalist Daniel J. Flynn’s query, “How can the NFL simultaneously characterize Ted Wells as ‘independent’ and correspondence related to his investigation as ‘privileged’ because of an attorney-client relationship?” Lorene explains why she thinks the privilege will not hold up. I agree with that conclusion, but see a different question at issue.
Privilege and Work Product Doctrine protections in investigations are interesting, and always complicated, issues. I agree that waiver results even assuming the attorney-client privilege applies if the report is publicized, i.e. not kept confidential. I’m most interested in my reading of Mr. Flynn’s (the other one’s) question. Are circumstances supporting privilege and the asserted “independence” of an investigation mutually exclusive? In other words, if the report was not disclosed, but the NFL asserted publicly that the investigation was “independent, full, and fair” does that alone waive what is otherwise privileged? I don’t think it does.
My closest reading of the case law in this area comes from the employment discrimination context. “At-issue” waivers predominate there where employer’s introduce the investigation as evidence of its exercise of reasonable care or remedial action to stop and prevent misconduct. The context here is very different, including presentation of the privilege question to the New York Federal Court at the NFL’s request. It’s not clear to me whether the NFL is saying, “We are just following the findings of this ‘independent’ investigation” or “The impartial investigation that we engaged is one of multiple sources of evidence, including Mr. Brady’s separate presentation of evidence, that we relied on to reach a good faith conclusion.” There is a big distinction there.
I try to reserve “independent” investigation to describe those investigations that take place under the authority of law enforcement or a governmental enforcement agency like the EEOC, OFCCP, and NLRB. These investigations occur whether the agency or individuals under investigation like it or not. I prefer “appropriate” investigation to describe one that is prompt, impartial, and thorough while still acknowledging that the investigation is occurring at the organization’s direction and expense. Unlike in the employment context, the NFL’s investigation is not remedial action that may resolve the issue by helping to stop and prevent similar misconduct. It will be interesting to see what happens next.