The authors how to make, or rather to restate, the case for the protection of reports and information generated during internal investigations at public colleges and universities. The results of an informal survey of university lawyers and Equal Protection Opportunity ("EEO") officers conducted by one of the authors prior to a presentation at the June, 2000 National Association of College and University Attorneys ("NACUA") Conference suggest that steps routinely are not taken by university counsel and investigators to assert the attorney-client and work product privileges and protect the fruits of internal investigations from disclosure. This seems odd, since the protection of internal corporate investigations has been a priority, and a “hot topic,” ever since the Supreme Court decided Upjohn Co. V. United States in 1981. The possibility of using these privileges more aggressively would seem to be all the more important in light of the hostile reception given by the courts and many state legislators to the so-called “self-critical analysis” of “self-evaluative” privileges.
In some cases it would appear that the possibility of asserting these privileges has not occurred to counsel or to other persons who do workplace investigations. Some counsel seem to assume that unless they do the investigation or witness interviews personally, the privileges will not apply. Sometimes, it is assumed, incorrectly, that communications reporting “factual information” are not protected by the attorney-client or workplace privileges. In other cases, the assumption seems to be that the privileges will always be waived anyway for some tactical reason, such as that the internal investigation will be used as some kind of “affirmative defense,” so there is no reason to “go through the motions” necessary to set up the privileges. Finally, counsel may entertain the assumption that “Open Records” laws will trump any claims of privilege. The authors would like to challenge these assumptions, and discuss the practical steps that should be taken when it has been decided that the privileges are worth claiming.
The authors would also like to address some troubling developments in the way that employment law is actually being practiced. Recently we have heard lawyers on the plaintiff’s “side of the v.” opine that they no longer need to engage in discovery because they get everything they need from the employer’s investigation. Furthermore, if they do not get the result they want, they sue, listing a glittering array of state tort claims such as “negligent investigation,” infliction of emotional distress, and tortuous interference. Frequently, such elaborate complaints name as additional defendants anyone participating in the investigation as a witness or as an investigator. On the defense “side of the v.” we hear equally alarming suggestions that in-house or outside defense counsel may do nothing but sit back and rely on the results of an internal investigation—“The defense rises or falls on the strength of the report.” We hope to persuade the reader that these approaches to the practice, on either “side of the v.,” are undesirable and wrongheaded, to say the least.