Employer must produce attorney’s investigation documents

Virginia Lawyers Weekly//May 12, 2022

Employer must produce attorney’s investigation documents

Virginia Lawyers Weekly//May 12, 2022

Where town officials testified they retained an attorney to investigate an employee’s hostile work environment complaints, and that investigation may determine the town’s liability, the magistrate judge did not err in ordering the town to respond to discovery about the investigation.


Jennifer Berry Brown brings this lawsuit asserting claims under Title VII and the Family and Medical Leave Act against the Town of Front Royal. After Brown raised her complaints about a hostile work environment to the town’s human resources department, HR initiated an investigation into those claims. At some point, the town hired attorney Julia Judkins as outside counsel to act as “an expert in personnel matters [and] to offer legal advice and counsel in the event it was needed.”

During discovery, Brown filed a motion to compel the town to produce certain documents and communications among the mayor, town councilmembers and Judkins.

Brown also sought to depose two witnesses about their communications with Judkins and any advice she provided related to Brown’s claims and subsequent firing.

The magistrate judge concluded that the town had waived its attorney-client privilege related to its investigation of Brown’s hostile work environment claim. The town filed objections to that order.


The town objects to the magistrate judge’s conclusions that (1) “the Town hired [Judkins] to investigate Brown’s complaints and to make sure the investigation was ‘done per the law’” and (2) “[t]he Town relied on [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 argues that “Bush, and Bush alone,” conducted the investigation into Brown’s complaints. Judkins, according to the town, did not “ever participate in the investigation, question witnesses, assemble facts, draw conclusions[,] or construct a remedial response” to Brown’s complaints. The town portrays Judkins’s role as merely reviewing the report “to provide legal advice and counsel related to the report which the Town—alone—prepared.” While this court may very well have reached a different conclusion on this record, the magistrate judge’s factual findings about the extent of Judkins’s involvement in the town’s investigation were not clearly erroneous.

Statements by Matthew Tederick and others support the magistrate judge’s factual conclusions that the town hired Judkins to investigate Brown’s complaints and relied on her conclusions about whether the alleged behavior constituted sexual harassment. Judge Hoppe therefore correctly reasoned that the town’s preventative and corrective actions may determine the town’s liability for a hostile work environment claim. This finding of waiver is bolstered by other courts assessing hostile work environment claims under Title VII that routinely hold that the Ellerth/Faragher affirmative defense waives attorney-client privilege when outside counsel investigates harassment allegations.

The town finally argues that the magistrate judge’s finding of waiver defies Fourth Circuit precedent holding that attorneys serving as part of an “investigative body” does not result in a waiver of privilege. Judge Hoppe did not conclude that the town waived its attorney-client privilege simply because Judkins conducted an internal investigation or provided legal advice related thereto; indeed, if he had, this court would have no trouble holding such a finding contrary to law.

Instead, the magistrate judge correctly recognized that the reasonableness of the town’s investigation was part and parcel to Brown’s hostile work environment claim, and that the town, through Tederick (and others), had expressly put that investigation and Judkins’s advice related to it at issue.

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

Brown v. Town of Front Royal Virginia, Case No. 5:21-cv-00001, May 3, 2022. WDVA at Harrisonburg (Cullen). VLW 022-3-186. 16 pp.

VLW 022-3-186


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