The Southern District of New York’s recent decision in Robinson v. Vineyard Vines, LLC, No. 15CIV4972VBJCM, 2016 WL 845283 (S.D.N.Y. Mar. 4, 2016) provides an example of how the work product doctrine operates in the context of an employment discrimination/sexual harassment case.
In this case, plaintiff alleged that another employee “repeatedly sexually harassed her and ultimately raped her at the VV Store in late December 2012” and that she was constructively discharged in retaliation for her complaints against the employee. Plaintiff sought “investigative documents created on behalf of” the defendant. The court held that the documents were privileged work product.
The court explained that “[t]he work-product privilege [codified in Fed. R. Civ. P. 26(b)(3)(A)] shields from disclosure materials prepared in anticipation of litigation or for trial by or for another party or its representative.” Specifically:
In employment discrimination cases, courts often find that an employer’s investigation shift[s] from an internal investigation in response to [a plaintiff’s] claims to an investigation for the purposes of mounting a legal defense against any such claims, and hold that documents created during the latter portion of the investigation are privileged work product.
The documents in question – which defendant’s human resources representative/consultant (Human Resources Consulting Group, or HRCG) generated after receiving an email dated January 9, 2013 (after plaintiff left her employment) containing plaintiff’s allegations of sexual harassment and other details – were created “in anticipation of litigation.”
Notably, after receiving the email, “the focus of the information-gathering by HRCG concerning [Plaintiff] shifted and it was HRCG’s understanding at the time that the information that HRCG was gathering in response to the [email] … was to be provided to Vineyard Vines and/or its counsel for their use in defending against the [claims in the]” email.
The court next held that there was no waiver of the privilege that would normally arise from the assertion of the so-called Faragher/Ellerth defense. Although defendants appeared to assert such a defense, they “affirmatively represented … that they are not asserting the reasonableness of any investigation as a defense in this litigation.”