Many companies are familiar with the particular type of “at issue” waiver entitled the “Faragher/Ellerth” doctrine (named for two 1998 United States Supreme Court decisions). Under that doctrine, companies asserting a “good faith” affirmative defense to an employment discrimination or sexual harassment claim generally waive any attorney-client privilege that would otherwise protect communications relating to the company’s exercise of reasonable care to “prevent and correct promptly” any harassing or otherwise improper behavior.
In Traversie-Akers v. Sales Operating Control Services, Inc., Civ. A. No. 08-cv-01206-PAB-MEH, 2009 U.S. Dist. LEXIS 7539 (D. Colo. Jan. 26, 2009), both the plaintiff and the defendants in a sexual harassment case agreed with this general Faragher/Ellerth doctrine approach. However, the plaintiff also sought privileged documents from a 1998 investigation into another incident involving one of the individual defendants (but not involving the plaintiff or her alleged harasser). The plaintiff argued that the corporate defendant in that earlier case had also raised a Faragher/Ellerth affirmative defense, so “the attorney-client privileged [sic] was waived in 1998 and remains waived today.” Id. at *4. The court rejected plaintiff’s argument, explaining that “[t]he defense is being invoked as to the Plaintiff, but the documents sought by the Plaintiff related to a different person in a remote time,” so “[t]he judicially created waiver does not apply to these facts.” Id. at *5. The court also noted that the plaintiff had not supplied the court with any “judicial finding” of waiver from the earlier case, and that “as a stranger to the events surrounding the 1998 incident, the Court questions the standing that Plaintiff has to assert a waiver.” Id.
Corporations relying on a Faragher/Ellerth affirmative defense should be on the lookout for similar arguments by plaintiffs, but can take some comfort in this recent analysis.