Attorney-Client Privilege in #MeToo Era Investigations

In September 2018, Dallas Basketball Limited, which operates the Dallas Mavericks, released a 43-page report of an internal investigation of alleged sexual misconduct in its business office.  The investigation was conducted by outside counsel and found numerous instances of sexual harassment and other improper workplace misconduct spanning almost twenty years.

The Mavericks are not the first organization to release the results of an internal investigation of sexual harassment and assault claims.  A number of universities and private schools have done so in recent years, and in January 2018, NPR posted on its website an investigation report of sexual harassment in its newsroom.

Against this backdrop of increasing disclosure, organizations conducting internal investigations in the #MeToo era may face pressure to disclose the resulting findings.  But disclosing an investigation report may waive the organization’s attorney-client privilege and work product protection, requiring it to turn over some or all of the underlying investigation materials to adversaries in lawsuits.

In Doe v. Baylor University, No. 16-CV-173-RP (W.D. Tex. Aug. 11, 2017), the court found that Baylor waived the attorney-client privilege as to “the entire scope of the investigation” into Baylor’s handling of sexual assault allegations against Baylor’s athletes. The waiver was based on Baylor issuing a 13-page summary of the investigation and a 10-page list of recommendations to improve its Title IX compliance and support for assault victims. Because the court found that Baylor conducted the investigation in large part over concern for Title IX lawsuits, it held that the interview memoranda, notes, emails, presentations and other documents prepared by the lawyers during the investigation were protected as attorney work product.  However, the large collection of documents amassed by the investigators was discoverable, as were the names of the individuals interviewed.

In another case decided last year, Banneker Ventures, LLC v. Graham, 253 F. Supp. 3d 64 (D.D.C. 2017), the court found that the Washington Metropolitan Area Transit Authority waived its attorney-client privilege by publishing an investigation report of a failed development project.  Because the report made detailed reference to the interviews conducted by counsel, the court found the waiver extended to the interview memos, as well.  The court also found there was no work product protection for the underlying memos because WMATA did not reasonably anticipate litigation at the time of the investigation.

These recent cases illustrate the risk that public release of an investigation report, even a summary report, may require disclosure of the remaining investigation materials in later lawsuits. To reduce this risk, organizations should take steps from the beginning of an investigation to document and protect their privileges, including: (1) documenting in an engagement letter or memorandum that counsel will conduct the investigation for the purpose of providing legal advice, (2) documenting any existing or anticipated litigation arising from the circumstances that triggered the investigation; and (3) taking steps to limit any waiver of privilege during and after the investigation. For specifics on how to preserve privilege, please consult an experienced investigations attorney.

Mary L. O'Connor | Farrow-Gillespie & Heath LLP | Dallas, TXMary L. O’Connor’s practice focuses on representing companies and their officers and directors in commercial litigation and arbitration, securities litigation, internal investigations, and regulatory investigations and enforcement proceedings.

During the course of her career, Mary has been named to the list of Best Lawyers in Dallas by D Magazine, and to the list of Texas Super Lawyers (a Thomson Reuters service) by Texas Monthly Magazine.