Employers Beware: Make Sure Investigation Reports are Shielded by Attorney-Client Privilege

Dennis Burke, a former employee of Massachusetts General Hospital, asserted a retaliation claim based on his whistleblowing activity while employed by the hospital. Burke alleged that MGH was double booking surgeries, which he considered to be inherently dangerous to patient safety. Prior to the inception of any litigation, MGH retained a lawyer, Donald Stern, to investigate Burke’s allegations, prepare an investigative report, and provide recommendations regarding MGH’s policies and procedures.

During discovery, Burke sought a copy of Stern’s report. Initially the Court ordered that a redacted copy of the report should be produced, with the redactions intended to prevent the disclosure of sections of the report that MGH claimed were privileged. On Burke’s motion for reconsideration, the Superior Court ordered MGH to produce the full, unredacted report, along with all other versions of the report, as well as all underlying investigative materials that Stern and his team reviewed or developed because: (1) Stern and his team were not hired to provide legal advice to MGH, so no attorney-client relationship was ever created; and (2) even if the report had been privileged, MGH waived the privilege because it used the report as both a sword and a shield, relying upon and referencing the report in responding to media requests, and disclosing unredacted copies of it to their outside public relations firm.

The Court cited two primary reasons for holding that the report and investigative materials should not be protected from disclosure by the attorney-client privilege. First, the Court found that Stern was engaged not by the MGH’s legal department, but by its Board of Trustees, the chair of which “testified at her deposition that she prompted the initial engagement of Mr. Stern,[,]” whom “[s]he viewed … as an independent investigator, and not part of the legal team.” Second, MGH’s privilege log included no “communications between Stern and MGH’s legal counsel either just before or just after the Stern report was issued.”

The Court also cited the language of Stern’s engagement letter, which (at least as excerpted by the Court) includes no reference to rendering legal advice, and instead speaks of collaboration on substantive and strategic decisions. 

The issue is still not completely resolved, however. After MGH’s appeal of the decision was denied by the Massachusetts Appeals Court, which cited the considerable discretion afforded to trial judges on discovery matters, on October 24, 2019, MGH filed an emergency motion for protective order concerning the report. That motion is pending in Superior Court, and we continue to monitor the docket.

Regardless of how this case ultimately plays out, the Burke decision provides critical guidance for employers who may be contemplating an investigation. Do not assume that engaging an attorney to perform an investigation will automatically shield the investigation and any report from discovery.

Three helpful tips to consider when initiating an investigation:

1. Ensure that counsel is engaged to provide legal advice, rather than solely business or strategic advice, and that the engagement letter includes language designed to trigger application of the attorney-client privilege.
2. If an employer has an in-house legal function, absent unusual circumstances (such as investigation into in-house counsel’s conduct), in-house counsel should be involved in, if not responsible for overseeing, the relationship with the investigator, as well as the investigation.
3. Once the privilege has been waived by sharing the information with a third-party, it cannot be reestablished, so be extremely selective in deciding when, and with whom, to share investigative reports and facts ascertained during the investigation. Unless litigation is reasonably anticipated, or the investigation is being performed by counsel in connection with on-going litigation, the work product doctrine may not shield the disclosure of this information.

Employers performing workplace investigations must be careful to establish, and then protect, the attorney-client privilege. When in doubt, seek advice from your employment counsel prior to commencing an investigation.