Robert P. Tinnin, Jr. and Glenn A. Beard, Editors
Tinnin Law Firm, A Professional Corporation

Vol. 13, No. 11
November 2007

ATTORNEY-CLIENT PRIVILEGE

New Mexico Court of Appeals orders production of lawyer/investigator's work

For most employers, the first reaction after receiving an employee's discrimination complaint is to conduct an investigation. That's a good practice. Be aware, however, that as a recent New Mexico Court of Appeals decision reminds us, internal discrimination or harassment investigations may not remain confidential and ultimately may have to be produced (or turned over to the other side) in litigation. If an employer uses an investigation as a tool in making a business decision (which is what you should normally do) or its counsel uses the investigation as a defense in litigation (which counsel will do), the investigation becomes an open book. That can lead to the disclosure of embarrassing and harmful information. The recent court of appeals decision highlights the scope of what ultimately must be turned over to the employee's lawyer if a claim is litigated.

Facts

Two internal investigators for Sandia National Laboratories thought their work was being impeded and that managers were retaliating against them because of their investigative efforts. Specifically, they claimed that they had been subjected to "potentially slanderous statements and libelous writings" and "a hostile work environment." They made their complaints known in a letter from their legal counsel to management.

Because the investigators themselves normally would have been assigned to conduct an investigation into the allegations, Sandia retained an outside investigator, attorney Norman Bay. He was a law professor at the University of New Mexico and a former U.S. attorney.

Sandia instructed Bay to conduct a "complete, thorough, and comprehensive" investigation into the investigators' allegations that they were "(1) being prevented from fully and faithfully carrying out their assigned duties as security investigators and (2) being retaliated against because of their past and ongoing efforts to ferret out possible fraud, waste [or] abuse." He also was instructed to treat his investigation as carrying the attorney-client privilege to the fullest extent possible. He was told to advise Sandia's in- house counsel about the investigation's progress and general terms from time to time and submit a written report detailing the results upon completion.

Bay began his investigation in August 2002 and completed it in June 2003 with the submission of a 221-page report titled "Report of Independent Investigation." In it, he criticized several employees' behavior, stating that their actions "merited scrutiny." One of the employees, Patricia Gingrich, was disciplined within a month after the report's release. Approximately one year later, she resigned from her job.

Gingrich later filed a state district court lawsuit challenging the disciplinary actions and alleging that Sandia knew that the investigative report's conclusions ― on which her disciplinary action was based ― were incorrect. Further, she alleged that it still disciplined her to appease members of Congress. Sandia denied any wrongdoing, claiming that the report provided an objective, reasonable belief that any action it took against Gingrich was justified.

Through counsel, Gingrich asked Sandia to produce the following items in preparation for the trial:

• the entire investigative report;
• communications involving Bay and Sandia's lawyers and representatives about Gingrich and the report;
• materials prepared by Sandia's in-house counsel and communicated to its nonlegal representatives; and
• all report-related materials that Bay prepared or compiled.

Copyright 2007 M. Lee Smith Publishers LLC

NEW MEXICO EMPLOYMENT LAW LETTER is published to provide information of general interest and not to provide legal advice regarding any specific situation. Questions and inquiries directed to specific applications of the information contained in the newsletter should be addressed to an attorney.