If an attorney investigates workplace harassment, must the company share the report if it is later sued?

One of your employees just complained to human resources that a co-worker sexually harassed her. As a responsible employer, you decide not only to investigate the complaint but to engage outside counsel to lead the investigation. Outside counsel investigates. When the investigation ends, outside counsel creates an investigative report.

If the lawsuit follows, must the company share that report with the plaintiff?

Those are the underlying facts, more or less, from this recent federal opinion, in which a South Carolina judge determined that the report contained attorney work product and, therefore, was not discoverable.

Why?

Because an attorney investigated, took notes, and prepared a memorandum afterward.

Critically, the investigating attorney knew of the likelihood of litigation before she even began the interviews. Therefore, the plaintiff was not entitled to discover her mental impressions concerning the investigation.

But, your mileage may vary. Consider this guidance from the court:

There is no hard and fast rule to determine the point in time when a document is created under the ordinary course of business, and therefore not protected by the work product doctrine, or under the anticipation of litigation, and therefore, protected by the work product doctrine.

…

In the human resources context, courts are split as to whether documents created during an internal investigation of a harassment complaint are created in the ordinary course of business or in anticipation of litigation.

Indeed, the court noted that each situation is analyzed on a case by case basis.

How do I handle this?

When I serve as the investigator before a lawsuit is filed, I assume that not only will my report be discoverable, but I may become a fact witness. Therefore, I generally will not serve as an investigator for my clients. Instead, I counsel my clients to retain someone independent.

How do you handle this?

You take steps that are reasonably designed to address and end the harassment. That may include retaining an outside investigator, especially if your company lacks experience with internal investigations.