Attorneys are often called upon by employers to facilitate investigations of workplace misconduct. One reason this is done is so the findings and conclusion of the investigation may receive the protection of the attorney-client privilege. However, under California law the particular role of the attorney, and the use of the investigative file, can have a significant impact on the scope of the privilege.
The attorney-client privilege may apply to communications made by an attorney to an employer-client during an investigation so long as an attorney-client relationship existed at the time the communications were made. (See Cal. Evid. Code § 952.) In certain instances, employers may wish to rely on the conclusions of attorney-led investigations in subsequent litigation. If the investigation is then placed at issue through the employer’s claim that it took appropriate remedial steps, then the employer may waive the attorney-client privilege. (See Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128.) However, California law demonstrates the role of the attorney in such an investigation may affect the extent to which the privilege is waived.
For example, in Kaiser Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217, the court found that where an investigation was conducted primarily by nonattorney personnel, substantially all investigative files were turned over to opposing counsel, and the employer sought only to protect limited communications between the investigator and its attorneys, the privilege remained intact as to these latter communications. However, where the investigation is conducted by an attorney and the client attempts to rely on the adequacy of the investigation in its defense, courts have found that the attorney’s notes and conclusions within the investigative file may no longer be protected by the attorney-client privilege or the work product doctrine. (See Walker v. County of Contra Costa (N.D. Cal. 2005) 227 F.R.D. 529, 536.) If the attorney continues to advise the client beyond the investigation-including providing advice as to the adequacy of the investigation-the privilege may remain intact as to post-investigation communications. (See id.) However, if the attorney-investigator’s conclusions are intertwined with facts but the conclusions are later not relied on in the litigation, the California Supreme Court has held that both the facts and conclusions contained in an opinion report prepared by an attorney may be protected by the attorney-client privilege. (See Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 734.)
In sum, while the attorney-client privilege can provide valuable protections attendant to workplace investigations, its protections are not without exceptions. In undertaking or overseeing such investigations, counsel should remain aware of the impact the use of the investigative file and other actions may have on the extent to which attorney-client communications are protected by the attorney-client privilege.
Ryan Stahl is an associate at Scherer Smith & Kenny in San Francisco. He practices civil litigation, with a focus on employment law and anti-SLAPP litigation.