Employers accused of wrongdoing by their employees often conduct internal investigations and turn to outside counsel for advice about those investigations. When employers communicate with outside counsel in seeking advice regarding their internal investigations, quite understandably, they would like the certainty that those communications will be viewed just as any other attorney-client communication—as confidential and shielded from disclosure in litigation based on the attorney-client and work-product privileges. A recent case, however, suggests that under certain circumstances, at least some courts will view employers’ assertions of privilege with skepticism, and place unexpected limits on their claims of privilege.
Whether a court will sustain employers’ assertions of the attorney-client privilege over communications with counsel during a workplace investigation depends, in part, on how the court will address one critical issue. A court must decide whether each communication constitutes a request for or the delivery of legal advice, or whether the communication concerns discussions regarding day-to-day activities conducted in the ordinary course of business.
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