An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

Therefore, when an investigation involves highly sensitive allegations or is complex, the school might consider having an attorney conduct the investigation. However, the fact that an attorney conducted the investigation does not always shield the report from disclosure. Eventually, it might be necessary to disclose information gathered during the investigation in order to establish that a fair and thorough investigation was conducted. In fact, if litigation ensues related to conduct that was investigated, the school and/or the investigator might be compelled to disclose the details of the investigative process, his or her notes, the report(s), and any other work product created as part of the investigation. Also, if litigation ensues, the school may need to disclose the investigation to show that it met its legal obligation to investigate and/or to show the findings reached to support action taken or that the school did not take action. In Wellpoint Health Networks, Inc. v. Superior Court , 1942 an employee complained that his employer subjected him to racial discrimination. A law firm conducted an investigation of the allegations. During subsequent litigation, the court held that if an employer defends a lawsuit by claiming that it conducted a thorough investigation and took an appropriate corrective action, “it does so with the understanding that the attorney-client privilege and the work product doctrine are thereby waived.” 1943 The court in Wellpoint did note that by retaining an attorney to conduct an investigation, an employer establishes a prima facie claim of attorney-client privilege. 1944 In City of Petaluma v. Superior Court , 1945 shortly after an employee went on leave from her job, the employer received a charge of discrimination from the EEOC alleging sexual harassment and retaliation on behalf of the employee. A few days later, the employee voluntarily resigned her position with the employer. A law firm conducted an investigation of the EEOC charge to prepare to defend the employer in an anticipated lawsuit. In the ensuing lawsuit, the court held that the attorney-client privilege applied to the law firm’s investigation although the employer specifically directed counsel not to provide legal advice as to which course of action to take. The court reasoned that the employer had retained counsel to use her legal expertise to conduct a factual investigation and the dominant purpose of the investigation was to provide legal services to the employer in anticipation of litigation. Moreover, outside counsel was not required to give legal advice as to what course of action to pursue in order for the attorney-client privilege to apply. The court also held that the employer did not waive the attorney-client privilege by asserting an avoidable consequences defense in the lawsuit – i.e., that the employee more likely than not could have prevented her alleged damages with reasonable effort and without undue risk, expense, or humiliation, by taking advantage of the employer’s internal complaint procedures. The court distinguished the Wellpoint case, above, explaining that the assertion of an avoidable consequences defense does not put a post- employment investigation directly at issue in the litigation. The employee necessarily could not have taken advantage of any corrective measures adopted in response to a post-employment investigation. Further, a post-employment investigation would not itself demonstrate that the employer took reasonable steps to prevent and correct workplace harassment while the employee was still employed.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 439