Disciplinary and Harassment Investigations

C. I NVESTIGATOR D ETERMINES THE F ACTS The agency should direct the investigator to gather facts, make any needed credibility determinations, prepare factual findings and issue a report (which will likely be discoverable). The agency attorney (not an attorney investigator) can then conduct a legal analysis and develop conclusions about the conduct, potential liability and similar legal issues. This legal report would probably be privileged and not subject to disclosure unless the agency chose to disclose it.

The agency should clearly communicate to the investigator the scope of the investigation.

D. U SING AN A TTORNEY TO C ONDUCT AN I NVESTIGATION Some circumstances may warrant having an attorney conduct the investigation. When an attorney is the investigator, the attorney-client privilege and attorney work-product doctrine may prevent disclosure of the attorney/investigator’s notes, reports, and other information gathered during the investigation. Therefore, when an investigation involves highly sensitive allegations, the agency may consider having an attorney conduct the investigation. However, it still may not be possible to shield the investigative report even when conducted by an attorney acting. Eventually, it may be necessary to disclose information gathered during the investigation to support discipline or to establish that a fair and thorough investigation was conducted. In fact, if DFEH or EEOC charges are filed or litigation ensues as a result of the investigation, the investigator may be compelled to disclose the details of the investigative process, his/her notes, the report(s), and any other work product created as part of the investigation. In Wellpoint Health Networks, Inc. v. Superior Court , 42 an employee complained that he was subjected 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.” 43 However, this was a situation where the employer put the investigation at issue by setting forth a defense that a proper investigation was conducted. 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. 44 In Petaluma v. Superior Court of Sonoma County , 45 the City retained an outside attorney to perform an investigation to assist the City in determining how to respond to an EEOC complaint and anticipated lawsuit, a legal service. The attorney was not only gathering facts; she was instructed to use her legal expertise to identify pertinent facts and come to a conclusion as to what happened. Plaintiff, on the other hand, was not able to present relevant evidence to contradict the City's assertion that the investigation materials were privileged. As a result, the Court determined that both the attorney-client privilege and work product doctrine applied. The court of appeal held that an employer does not waive privilege associated with an investigation conducted after the employee leaves employment simply by asserting the avoidable consequences defense. The Court determined that asserting the avoidable consequences doctrine

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