Town must produce attorney’s report

Where the Town of Front Royal retained an attorney to conduct an investigation into a town clerk’s discrimination complaints, it must produce communications regarding the investigation, the attorney’s conclusions and her advice about any remedial measures to address the alleged harassment because it put her communications “at issue.”

Background

This is a discrimination, retaliation and harassment case arising out of the termination of Jennifer Berry Brown’s employment as clerk to Town of Front Royal, Virginia’s council. This matter is before the court on Brown’s motion to compel discovery from the town.

Analysis

Brown asserts that after she complained about harassment to Julie Bush, the town’s HR director, the town hired attorney Julie Judkins, who is counsel of record to the town in this matter, “to make sure that everything in the investigation, and later in the firing of [Brown], was done to insure it was legal.” Brown now seeks “information and documents underlying Ms. Judkins’[s] involvement in both the investigation of [Brown’s] harassment and retaliation complaints and in the termination of [Brown’s] employment.”

Brown asserts that the town waived the attorney-client privilege for communications it had with Ms. Judkins regarding Brown’s termination by “voluntarily disclos[ing] portions of the advice it received from Ms. Judkins” in the town’s EEOC position statement. The town’s statement to the EEOC, however, did not disclose the contents of its attorney’s advice. Rather, the town advised that it had retained counsel to ensure that it acted within the law. Such a statement does not waive the attorney-client privilege.

Additionally, the town’s statement to the EEOC did not put advice of counsel “at issue” as to Brown’s termination. The town has not asserted reliance on the advice of counsel as an affirmative defense. Moreover, although Matthew Tederick, the town’s Rule 30(b)(6) designee, testified that Ms. Judkins drafted the severance documents for Brown, did not testify that Ms. Judkins made the decision to terminate Brown. Accordingly, I do not find that the town has put at issue or otherwise waived the attorney-client privilege as to communications with Ms. Judkins regarding Brown’s termination.

The analysis is different, however, for Ms. Judkins’s communications with the town regarding the investigation of Brown’s complaints of harassment and her claim of hostile work environment. The town’s awareness of Brown’s complaints about Sealock’s alleged harassment and Ms. Judkins’s investigation and the conclusions drawn therefrom, are part and parcel to the reasonableness of the town’s response to Brown’s hostile work environment claim.

The town hired Ms. Judkins to investigate Brown’s complaints and to make sure the investigation was “done per the law.” The town relied on Ms. Judkins and the “HR department” to determine whether the investigation showed “that there was sexual harassment or retaliation or a hostile work environment.” The town relied on its counsel to investigate Brown’s claims of harassment, develop conclusions about the investigation and determine the necessity of remedial actions.

Ms. Judkins’s communications on those points with the town bear directly on the town’s knowledge of Brown’s allegations of harassment and the reasonableness of its response. By relying on Ms. Judkins to assist with the investigation and advise about what remedial measures were necessary, if any, the town has put its communications with her “at issue” in this case. Accordingly, I find that defendant has waived the attorney-client privilege as to communications with Ms. Judkins regarding the investigation of Brown’s complaints of harassment, Ms. Judkins’s conclusions about the investigation and her advice about any remedial measures to address the alleged harassment.

Plaintiff’s motion to compel granted in part, denied in part.

Brown v. Town of Front Royal Virginia, Case No. 5:21-cv-00001, March 31, 2022. WDVA at Harrisonburg (Hoppe). VLW 022-3-152. 13 pp.