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Several cases have held that defendants also lose the work product and attorney-client privileges once they assert the investigation as an affirmative defense. Similarly, many courts that recognize the self-evaluative privilege in principle, nevertheless order investigation materials produced based on the plaintiff's need for the information.

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See Volpe v. US Airways, Inc. Rauland-Borg Corp.

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New York City Ballet Co. BNA , 71 Empl.

Wellpoint Health Networks, Inc. Superior Court, 59 Cal. But see Kaiser Foundation Hospitals v. Superior Court, 66 Cal. In Harding v. The plaintiff sought discovery of the investigative report and also noticed the deposition of the attorney who had completed the investigation. The court found the defendant had waived the attorney-client privilege by putting the investigation in issue. The plaintiff had filed an initial complaint and a law firm was brought in to conduct an investigation. The court found that hiring the law firm created a prima facie presumption that the attorney-client privilege applied.

Yet, the defendant's use of the investigation to show that it took reasonable corrective action acted as a waiver of the privilege. When an employer injects into a lawsuit an issue concerning the adequacy of its investigation, and the investigation was undertaken by an attorney or law firm, a waiver of the traditional protections must be deemed to have occurred. The court cautioned, however, that the trial judge should not issue a blanket nullification of the privilege but should make findings on a document-by-document basis, which this court has done in conducting its in camera review.

The trial judge should not have given plaintiff "carte blanche access" to defendant's investigative file, but should have based his ruling on the subject matter of each document. Work product protection in the Wellpoint case also evaporated. The court noted that the defendant waived any work product privilege that may have attached by invoking the investigation in its defense.

See Id. Appleton Elec. In Payton v. New Jersey Turnpike Authority, the court found that the attorney-client privilege was waived once the employer placed the investigation at issue by asserting it as an affirmative defense. The court opined that materials relating to an internal investigation of sexual harassment are generally discoverable.

See Payton, A. The court also found that there was no work product privilege since the investigation had begun months before the plaintiff's suit started. The court also cited the plaintiff's need for the information. Attorney Linda Tripoli's investigative report Tripoli Report. Plaintiff asks this court to order Defendants to turn over withheld portions of a report prepared by Linda Tripoli, an attorney retained by Defendants "to investigate the charge [of employment discrimination] and report to County Counsel on the facts surrounding the charge and the merits.

Defendants have already turned over portions of the Tripoli Report to Plaintiff including tapes and transcripts of interviews Ms. Tripoli relied on to prepare the report and parts of the report which summarize Ms. Tripoli's factual investigation. Defendants withheld the analytical and evaluative portions of the Tripoli Report which they assert contain Ms. Tripoli's legal research and analysis and her evaluation of the merits of the case.

Defendants argue that this portion of the report is subject to the attorney client and work product protections and should not be turned over to Plaintiff. Citing a malpractice case from the Eastern District of Michigan as support, Defendants assert that Plaintiff "offers no basis for an order requiring disclosure of such matters. Temple Cutler, F.

The Tripoli Report, prepared for the County by an attorney in anticipation of litigation, would ordinarily be subject to both work product and attorney client privilege protection. The attorney client privilege applies to the Tripoli Report because it was prepared by an attorney at the direction of the County's attorney with the intent of providing the County with legal advice regarding the merits of Walker's claim.

See Clarke v. American Commerce Nat'l Bank, F. As the Supreme Court noted in Upjohn Co. United States, U. The attorney-client privilege has eight essential elements: "1 where legal advice of any kind is sought; 2 from a legal adviser in his capacity as such; 3 the communications relating to that purpose; 4 made in confidence; 5 by the client; 6 are at his instance permanently protected; 7 from disclosure by himself or by the legal adviser; 8 unless the protection be waived.

The Tripoli Report meets the threshold criteria for a privileged attorney-client communication. The Tripoli Report may also be protected by the work product doctrine because it was prepared in anticipation of litigation by an attorney for one of the parties to the action now before the Court. Hickman v. Taylor, U. Although work product protection is not absolute the portions of the report withheld belong to the most protected class of work product because they reflect the mental impressions and legal opinions of Ms.

Walker contends that Defendants waived both privileges by asserting their investigation as an affirmative defense and that he has a legitimate reason for disclosure of the report. Walker argues that Defendants cannot hide behind attorney client privilege or work product protection when the adequacy of Defendants' investigation into Walker's allegation of discrimination is called into question. Walker argues that work product and attorney client privilege are waived when Defendants rely on the report as a defense to allegations of discrimination. If Defendants assert as an affirmative defense the adequacy of their pre-litigation investigation into Walker's claims of discrimination, then they waive the attorney-client privilege and the work product doctrine with respect to documents reflecting that investigation.

Where a party puts the adequacy of its pre-litigation investigation at issue by asserting the investigation as a defense, the party must turn over documents related to that investigation, even if they would ordinarily be privileged. Harding v. As mentioned above, Defendants merely assert that: "Plaintiff offers no basis for an order requiring disclosure of such matters. This language indicates that Defendants intend to rely on Ms. Tripoli's investigation as a defense in this action. For that reason Defendants must turn over Ms. Tripoli's report as it pertains to the pre-litigation investigation into Walker's claim of discrimination.

However, Ms.

Tripoli's legal analysis of the adequacy of Defendants' investigation does not fall within the scope of Defendants' waiver. Defendants' pre-litigation investigation is relevant to their affirmative defense, but the attorney's intra-litigation analysis of that investigation is not. See Wellpoint, 59 Cal. Their affirmative defense says nothing about any intra-litigation investigation, only the pre-litigation investigation.

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Consequently, there is no waiver of the work product doctrine with respect to Tripoli's Findings and Conclusions at the end of the report. These finding are in fact the most protected form of work product: the attorney's legal analysis and opinions. They may reflect her advice to Defendants within this litigation and are therefore shielded from discovery.

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Accordingly, this Court orders Defendants to disclose to Walker all of the Tripoli Report, with the exception of the Findings and Conclusions. Human Resources Report Knight Report. After the Contra Costa County Board of Supervisors became aware of a potential problem resulting from the failure to promote Plaintiff, the Board ordered the Human Resources Department to prepare a report responding to the charges of discrimination. Defendants state that the report "consists of a description of the hiring process, and the evaluation of the Human Resources Director of the compliance of the process with County regulations and its fairness.

They argue that the Knight Report was confidential and was prepared for and presented to the Board by the Human Resources Director acting under the supervision of counsel. In response, Walker argues that Defendants have not met their burden to show the Knight Report is privileged. Walker argues that even if the Knight Report is subject to work product protection, he can show substantial need for the Report and inability to obtain the information by other means.

Whether the report is or is not subject to attorney client privilege or work product protection is immaterial in this case because any protection that may have applied is waived by Defendants' stated intent to rely on the investigation as a defense in this action. The analysis of privilege is slightly different for the Knight Report than for the Tripoli Report.

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The Knight Report was prepared by a non-attorney at the request of County Counsel for the use of the Board of Supervisors. This brings a slightly different standard of waiver to bear. Superior Court 66 C.

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