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Harassment Investigations Conducted By Legal Counsel May Not Be Protected By The Attorney-Client Privilege

In the case of Smith v. Technology House, Ltd., 2019-Ohio-2670, an Ohio appellate court held that the attorney-client privilege may not protect all recordings and documents used by legal counsel in the investigation of a harassment complaint.

In this case, an employee brought an internal complaint of sexual harassment against the employee’s supervisor. The employer hired legal counsel to conduct an investigation into the alleged sexual harassment. When the employer failed to take action against the supervisor, the employee brought a civil claim against the employer for Title VII sexual harassment.

In preparation for trial, the employee requested that the employer produce all recordings and documents related to the employer’s investigation of the employee’s complaint, as well as documentation identifying all witnesses who participated in the investigation. In response, the employer refused to produce any of the requested materials arguing that such documents were protected by the attorney-client privilege – i.e., the materials were made in confidence by the employer’s legal counsel and, therefore, exempt from being disclosed.

The Ohio appellate court found that not all recordings and documents related to the investigation are automatically protected by the attorney-client privilege. Specifically, the Ohio appellate court found that the attorney-client privilege does not protect (1) documents and records that existed prior to or were created independent of the investigation, (2) the identity of persons who participated in the investigation, or (3) recordings of the interview with the complainant employee.

To read this case, click here.

Authors: Matthew John Markling and the McGown & Markling Team.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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