76 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP that an employer waived privilege by putting the investigation at issue in the litigation. These issues can lead to highly contentious and fraught discovery disputes. The details of exactly how an investigation report will be used by the employer in litigation can be dispositive of an employee’s claims of waiver. For example, in Benson v. City of Lincoln,634 a female firefighter alleged a range of sex-based discrimination claims against her city employer. In short, plaintiff alleged that another firefighter refused to communicate with her and left her and her crew in a dangerous situation.635 The employer hired an outside attorney to conduct an investigation. The attorney investigating the incident interviewed plaintiff, the other firefighter accused of misconduct, and several other firefighters who were at the scene of the incident; her report was marked as attorney-client privileged and attorney work product.636 Its conclusions generally refuted plaintiff’s claims of misconduct, leading to plaintiff’s termination for, among other things, making false allegations against a fellow firefighter.637 Although the employer produced the investigation report itself to plaintiff, it withheld the attorney’s other communications, documents, and recordings in her investigative file as work-product or attorney-client privileged. Plaintiff argued that those privileges had been waived because the employer intended to use the report to refute plaintiff’s case in litigation. The court first held that “the record reflects no intent on the part of Defendants to use the Investigation or the Investigation Report to support any affirmative defense.”638 According to the court, the employer intended to use the report as evidence of a legitimate, nondiscriminatory reason for plaintiff’s termination under the McDonnell Douglas burden-shifting framework, but could not and/or did not intend to use it to establish any affirmative defense.639 The distinction between the different burden-shifting regimes under Title VII and EPA was critical to the court’s analysis. Under Title VII, “an employer is only required to articulate or produce a legitimate reason for its actions, but the employer does not bear a burden to prove or persuade, only to make a minimal evidentiary showing,” whereas “The Eighth Circuit Court of Appeals . . . distinguished the Equal Pay Act, under which the employer bears a burden of persuasion to show one or more of the enumerated justifications other than sex for a pay differential, and Title VII, under which a ‘defendant need only articulate a legitimate reason defense.’”640 Accordingly, the city employer had not waived privilege over its attorney’s investigation because it was being offered only to support a denial that is not an affirmative defense: “the fact that an attorney investigates a claim and reports to a corporate client does not waive privilege where ‘no actual defense of reliance on the attorney's recommendations or findings is made as a basis of the defense against the claim.’”641 However, in Goulet v. University of Mississippi,642 the District Court for the Northern District of Mississippi held that large swaths of an employer’s internal investigations of plaintiff’s equal pay and other sexdiscrimination complaints should be produced because attorney-client privilege had been waived. In that case, six female university professors sought the production of an investigative report compiled by their employer’s counsel after they filed a pre-suit internal complaint of discrimination. The employer had relied on that report in its formal response to plaintiffs’ charge of discrimination filed with the EEOC. Among other things, the employer had disclosed what it learned from interviewing plaintiff as part of the investigation, as well as other facts learned during the course of the investigation. Stating the blackletter law of waiver or privilege, the court held: “’[t]he attorney-client privilege was intended as a shield, not a 634 Benson v. City of Lincoln, 343 F.R.D. 595 (D. Neb. 2023). 635 Id. at 602. 636 Id. at 602-03. 637 Id. at 603. 638 Id. at 610. 639 Although the employer’s Rule 30(b)(6) witness had testified that the city would rely on the report to establish its good faith defense and other affirmative defenses, the court held that it is attorneys, not witnesses, who decide trial strategy, and that the city was not bound by strategy determinations stated by a witness at a deposition, even of a corporate witness. Id. 640 Id. at 612 (citing Parada v. Great Plains Int’l of Sioux City, Inc., 483 F. Supp. 2d 777, 809 (N.D. Iowa 2007) and citing and quoting Bauer v. Curators of Univ. of Mo., 680 F.3d 1043, 1045-46 (8th Cir. 2012)). 641 Id. at 613 (quoting Stockton v. HouseCalls Home Health Servs., Inc., No. 06-cv-357-GKF-PJC, 2007 WL 9782747, at *4 (N.D. Okla. June 15, 2007)). 642 Goulet v. Univ. of Miss., No. 3:22-cv-89-NBB-JMV, 2023 WL 2603939 (N.D. Miss. Mar. 22, 2023).
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