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.