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Employer’s Claim Investigation May Be Protected from Disclosure

November 17, 1998
Related Topics: The HR Profession, Harassment, Miscellaneous Legal Issues, Featured Article
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Communications between a human resources member and the company’s legal counsel may be protected from disclosure in any later employment litigation.

A sexual harassment charge was filed against a Kaiser Foundation Hospitals physician. The human resources department consulted with Kaiser’s attorneys, investigated the claim and prepared a report. Three plaintiffs, who filed suit for sexual harassment, sought discovery of the complete investigatory files. Although Kaiser produced some 90 percent of its files, it refused to produce the records of communications between its HR staff and attorneys.

On appeal, after the trial court ordered production of those documents, the California Court of Appeals stayed the disclosure order because such documents could well be protected from disclosure by the attorney-client and work-product privileges. Kaiser Foundation Hospitals vs. Superior Court of San Mateo County, Cal. Ct. App., No. A081771, 9/28/98.

Impact:
An employer’s investigation of employment claims under the direction of its attorneys may be protected from disclosure, and therefore, requests to produce the resulting documents should be resisted.

Source: D. Diane Hatch, a San Francisco-based human resources consultant, & James E. Hall, an attorney with Barlow, Kobata & Denis, with offices in Los Angeles and Chicago.


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