Background
Plaintiff C.S. worked as a truck driver for Brick Recycling Company. In June 2023, he reported to owner Peter DeCenzo that he was being “stalked” and subjected to unwanted sexual advances by M.R., a corporate financial controller who worked in the office. C.S. also alleged that M.R. had accessed his bank records without permission and disclosed that information to others. DeCenzo immediately separated the employees, directing both to have no further contact.
In August 2023, DeCenzo retained the law firm Ruderman & Roth to investigate the harassment allegations. Attorney Ellen Horn conducted the investigation and issued a forty-five-page report in October 2023 concluding that “it is more likely than not” that M.R. had engaged in harassment in violation of company policy. C.S. resigned while the investigation was ongoing. In October 2023, he filed suit under New Jersey’s Law Against Discrimination against Brick Recycling, DeCenzo, and M.R., alleging sexual harassment and constructive discharge.
During discovery, defendants produced Horn’s final investigation report but withheld eight other documents, asserting attorney-client privilege and work-product doctrine protection. These included Horn’s letters to DeCenzo, draft portions of the report, meeting notes, and her retainer agreement. The trial court, after in camera review, found none of the withheld documents privileged and compelled disclosure. Defendants appealed.
The Court’s Holding
The Appellate Division vacated the trial court’s order and remanded for a more thorough in camera review. The court held that the trial court erred in categorically rejecting all privilege claims without applying proper legal standards. The court reaffirmed and clarified the seminal framework from Payton v. New Jersey Turnpike Authority (1997), which governs attorney-conducted workplace investigations.
The court held that documents prepared by an attorney for a workplace investigation may be protected by attorney-client privilege and work-product doctrine if created for the purpose of providing legal advice or preparing for anticipated litigation. However, privilege may be partially or entirely waived if an employer relies on the investigation as an affirmative defense. Critically, the court defined the scope of such waiver: documents are only discoverable if they are not “tenuously related” to the affirmative defense. The trial court must evaluate each document, page-by-page and line-by-line, considering whether it could substantiate the defense (by showing the reasonableness or thoroughness of the investigation) or impeach it (by showing the investigation was curtailed or lacked independence). Documents containing only legal advice unrelated to the defense merit redaction. The court expressed preliminary concerns about disclosing Horn’s draft report, analogizing to work-product protection for draft expert reports, and suggested the trial court should reconsider that issue.
The court remanded with detailed instructions for renewed in camera review, requiring written determinations with statements of reasons. The trial court must also consider any additional documents beyond the eight enumerated items and may require the plaintiff to submit a written proffer explaining how additional documents could assist his case.
Key Takeaways
- An attorney-conducted workplace investigation may be privileged under attorney-client and work-product doctrines if created for legal advice or in anticipation of litigation, even if begun before a lawsuit is filed.
- An employer that asserts an investigation as an affirmative defense does not automatically waive all privilege protection; waiver extends only to documents that are not “tenuously related” to that defense.
- Trial courts must conduct meticulous in camera review—page-by-page or even line-by-line—assessing each withheld document’s relationship to the affirmative defense and permitting selective redaction of privileged material unrelated to that defense.
- Documents are discoverable if they could either substantiate the employer’s defense or impeach it; remoteness and attenuation from the defense are relevant factors.
- Draft versions of investigation reports warrant heightened protection by analogy to work-product doctrine protections for draft expert reports.
Why It Matters
This decision strikes an important balance in workplace harassment litigation between protecting attorney-client communications and ensuring plaintiffs can obtain evidence relevant to employer defenses. For employers, it clarifies that invoking an investigation as an affirmative defense doesn’t result in blanket waiver of all privilege—they may still withhold materials with only attenuated connection to that defense. For plaintiffs, it guarantees access to investigation materials that meaningfully bear on whether the employer’s claimed remedy or investigation was actually reasonable. The case reinforces that trial courts must engage in careful, substantive in camera review rather than categorical rulings, and establishes that the timing of investigation initiation (before litigation is filed) does not defeat privilege if litigation was reasonably anticipated.
The decision also leaves open significant questions about how privilege protections apply to public entities and discrimination investigations conducted under federal Title VII, which may have different policy considerations than private workplace investigations under state law.