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Internal Investigation Report Prepared by Outside Counsel Entitled to Work Product Protection

In Lassiter v. Hidalgo Medical Services, No. 17-00850 (D. N.M. Apr. 18, 2018), a former employee sought to compel production of outside counsel’s reports and findings of an internal investigation into harassment claims. The discovery demand was denied, in this instance, because the Court found that the documents, which contained “factual summaries of the information she learned in the course of her investigations” were protected by work-product privilege. The documents were protected because they were “prepared by a representative of the defendant in anticipation of litigation” and because the plaintiff could not show “a substantial need for the materials and an inability to obtain their equivalent through other means absent undue hardship.” Further, in this case, the defendant did not waive the privilege because it disclaimed any reliance on the investigation as a defense in the matter.

While this decision is comforting, it is not an across-the-board protection of investigations conducted by outside counsel. In some instances, a claimant, may be able to establish a substantial need for the report and, in doing so, prove that the information cannot be otherwise obtained. In those instances disclosure is likely to be ordered.

Jackson Lewis P.C. © 2020National Law Review, Volume VIII, Number 143

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About this Author

Allison E. Maue, Jackson Lewis, Lawyer, agency proceedings, mediations, arbitrations attorney
Of Counsel

Allison E. Maue is Of Counsel in the Long Island, New York, office of Jackson Lewis P.C. She has over fourteen years of experience litigating and advising clients with respect to a variety of labor and employment matters. In addition to acting as lead counsel in all aspects of court and agency proceedings, mediations, and arbitrations, Ms. Maue advises clients regarding the development and implementation of effective employment policies, handbooks, procedures, and contracts. Ms. Maue has prepared and presented training programs on investigations, harassment, and non-discrimination, and has...

631-247-4670
Jeffrey M. Schlossberg, Employment Attorney, Jackson Lewis, Law firm
Principal

Jeffrey M. Schlossberg is a Principal in the Long Island, New York, Office of Jackson Lewis P.C. Mr. Schlossberg has devoted his entire career to the employment law field.

Mr. Schlossberg has extensive experience in handling all aspects of the employer-employee relationship. Areas of concentration include: employment discrimination prevention and litigation; workplace harassment policy development and compliance; social media and information privacy in the workplace; family and medical leave; disability matters; wage and hour investigations and litigation; non-competition agreements; and corporate mergers and acquisitions.

Mr. Schlossberg has defended against claims such as sexual harassment, age, race, national origin and disability discrimination for public and private companies in industries such as media, technology, airline, aircraft components, restaurants, supermarkets, securities, medical, manufacturing, cosmetics, food processing, software, clothing, vitamins and nutritional products, and many other employers of varying size throughout the metropolitan area and across the country.

Mr. Schlossberg lectures frequently about various topics to trade and professional associations, such as the Hauppauge Industrial Association. Mr. Schlossberg is also an active member of the Nassau County Bar Association and is a Past Chair of the Nassau County Bar Association Labor & Employment Law Committee. 

631-247-4614