While most parties and their counsel are vigilant in keeping their communications confidential, so as to avoid any chance that the attorney-client privilege can be invaded, there are some situations in which a party makes a tactical decision to waive that privilege. When this happens, courts generally agree that such a waiver will extend to all communications on the same “subject matter” as the disclosed communications. Having said that, however, there do not appear to be any general guidelines or bright-line tests to determine what is meant by the subject matter of a communication. Rather, such analyses are done on a case-by-case basis.
While trying to determine what a court will define as the scope of the subject matter of a particular communication can be a bit like reading tea leaves, a related area that is even more fraught with peril is where a party decides to have counsel undertake an investigation and then publicizes some or all of a report generated from that investigation. Indeed, this is the exact, and unfortunate, position in which the Hamilton County (Tennessee) Board of Education found itself earlier this year.
In 2015, three members of a high school basketball team located in Hamilton County were accused of sexual assault. In response to these accusations, the Board hired Attorney Courtney Bullard to conduct an investigation and provide it with legal advice. As part of her assignment, Bullard also generated a report, which was presented to the Board, and which the Board subsequently released to the public.
A few months later, two of the alleged victims filed suit against the Board and others. While the Board agreed to produce copies of witness statements and some underlying materials gathered by Bullard in connection with her investigation, it refused to provide other related documents, including communications between her and the Board’s regular attorney, Scott Bennett. The plaintiffs moved to compel the production of those communications, arguing that the Board had waived the attorney-client privilege. The District Court Judge agreed, ruling that:
Where the client discloses confidential attorney-client communications, the privilege is waived as to all privileged communications on the same subject matter. … I find that when the Board released the Bullard Report, it waived the attorney-client privilege as to the entire scope of the investigation performed by Attorney Bullard, and all materials, communications, and information provided to Attorney Bullard as part of her investigation.
The Board made a last-ditch effort to stave off having to produce the privileged communications by asserting the work-product doctrine, and the Judge did note that voluntary disclosure of material to a third party is not sufficient to waive work-product protections. Unfortunately, however, the Judge ultimately ruled that the work-product doctrine could not shield the information at issue, because:
[T]he Board has placed the quality and substance of Attorney Bullard’s mental impressions and opinions squarely at issue by indicating that it intends to use the contents of her report, [and because] … Attorney Bullard has been designated as an expert witness to testify concerning her mental impressions and opinions.
In light of the foregoing and similar cases, companies undertaking an internal investigation should carefully consider whether they will disclose the results thereof. If those results are to be disclosed, it may be important that the people involved in undertaking the investigation limit their work to gathering and reporting facts, and do not provide any legal advice. Indeed, taking such precautions may be the only way to avoid the disclosure of a host of confidential material.