Back in February I blogged about a recent case, EEOC et al. v. Spitzer, wherein the employer’s in-house counsel investigated internal complaints of discrimination and retaliation (see here for the prior post). The takeaway was that it is a bad, bad idea to have your lawyer, in-house or otherwise, investigate workplace complaints of harassment, discrimination and the like. The reason? If your lawyer investigates and you later want to rely on the investigation as part of your defense, you will have essentially waived the attorney-client privilege.
Now, I bring to you an update of the case, which went to trial back in January. After about a week of witness testimony, the court declared a mistrial, as it came to light that the employer had withheld lots of relevant evidence from the plaintiffs during the six years of pretrial proceedings. Plaintiffs filed a motion for sanctions, which the court just granted, in large part, earlier today. It awarded the plaintiffs over $300,000 in attorneys’ fees. The fees are to be paid by the employer and its counsel, who was complicit in the failure to produce important documents. This is a serious sanction. Further, the case will be retried, and the court will likely make a lot of evidentiary calls and instructions to the new jury in the plaintiffs’ favor. The court’s order is really a serious slap in the face to the employer and its lawyers.
One aspect of the order is particularly relevant for those of us who conduct workplace investigations. An attorney who was assigned to investigate one of the plaintiff’s internal complaints (this is all pre-lawsuit) testified she took handwritten notes and then transcribed them. Her typed notes were produced during the litigation, but her handwritten notes were not. It was apparently her practice to hold onto the handwritten notes. Thus, they should have been produced. One of them was problematic for the employer. In the handwritten version, the attorney/investigator wrote “BAD FOR US” with respect to some witness testimony. Lo and behold this comment was missing from the typed notes.
What’s the problem? Where do I begin. First, the fact that the attorney/investigator considered herself part of “us,” meaning the employer, demonstrates a lack of impartiality – the linchpin of being a good investigator. Second, her omission of this notation from the typed version of the notes suggests she knew this was not an appropriate remark to make. Finally, as I tell every investigator I ever trained, one of the golden rules of investigation documentation is to avoid commentary, plain and simple.
I will be paying attention as this case works its way through the trial process once again. Stay tuned for any relevant updates.