United States District Court, District of Columbia
D. BATES United States District Judge
Twila Smith and Deirdre Osbourne have filed this action
against their former employer, defendant Ergo Solutions, LLC
(“Ergo”), and one of Ergo's managing
partners, defendant George Brownlee, alleging sexual
harassment. They seek equitable relief and damages under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., and the District of Columbia Human Rights Act,
D.C. Code § 2-1401 et seq. Now before the Court is
plaintiffs' motion to compel discovery of a report
written pursuant to Ergo's internal
investigation of sexual harassment claims brought
against defendant Brownlee by two other Ergo employees.
See Pls.' Mot. to Compel [ECF No. 73]. Brownlee
and Ergo assert that the report is protected by the
attorney-client privilege. However, for the reasons set forth
below, the Court finds that Brownlee waived any
attorney-client privilege through his deposition testimony.
The Court will, therefore, grant the motion to
and Osbourne allege that “Ergo has long subjected
[them] to an abusive, offensive, humiliating and hostile
environment as a result of pervasive sexual
misbehavior.” Third Am. Compl. [ECF No. 52] ¶ 14.
They claim that “[t]he Company created a corporate
culture where sexual abuse was tolerated and the
objectification of women was promoted.” Id.
Plaintiffs specifically allege that Brownlee, one of
Ergo's managing partners, engaged in egregious sexual
misconduct towards plaintiffs, including sending them
explicit videos and text messages, see, e.g.,
id. ¶¶ 18, 44, 56, 63, 66, propositioning
plaintiffs for sex, id. ¶¶ 18, 25, 34, 35,
44, forcing unwanted kissing and touching onto plaintiffs,
id. ¶¶ 36, 66, and “expos[ing] his
genitals and masturbat[ing]” in front of Smith,
id. ¶ 37.
2009, Ergo received complaints from two other female
employees accusing Brownlee of sexual harassment and alleging
claims similar to those alleged in this suit. In response,
Ergo retained attorney Donald Hartman to conduct an
investigation of the company and its management. As part of
his investigation, Hartman created a written report of his
findings and recommendations. Whether this report is
discoverable is now at issue.
mentioned this report in his deposition on September 27,
2016. See Brownlee Dep., Ex. E to Mot. to Compel
[ECF No. 77], Tr. 28:5-30:20, 34:7-10. Jerry Warren, the
former Human Resources Director for Ergo, also mentioned it
in his deposition on September 28, 2016. See Warren
Dep., Ex. A to Mot. to Compel [ECF No. 73-1], Tr. 41:21-47:2.
During Brownlee's deposition, he specifically discussed
the report's post-investigation recommendations,
including that he stay away from the building for six months,
pay a $10, 000 fine, and see a therapist. See
Brownlee Dep., Tr. 28:5-30:20, 34:7-10.
Ergo and Brownlee claim attorney-client privilege while
plaintiffs assert that either the document is not privileged
because it contains business advice rather than legal advice
or, alternatively, that the privilege was waived by Warren or
Brownlee during their respective depositions. After a hearing
on February 13, 2017, this Court has reviewed the internal
investigation report in camera to determine whether
it is privileged and whether it must be produced to
Rule of Civil Procedure 26(b)(1) provides that
“[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense[.]” Fed.R.Civ.P. 26(b)(1). If a party
objects to the disclosure of certain documents, the
requesting party may move to compel disclosure of the
withheld material. Fed. R .Civ. P. 37(a). The moving party
“‘bears the initial burden of explaining how the
requested information is relevant'” before the
burden shifts to the non-moving party to
“‘explain why discovery should not be
permitted.'” See The Navajo Nation v. Peabody
Holding Co., 255 F.R.D. 37, 46 (D.D.C. 2009) (quoting
Jewish War Veterans of the United States of America, Inc.
v. Gates, 506 F.Supp.2d 30, 42 (D.D.C. 2007)). If the
non-moving party is withholding documents on the grounds that
they are privileged, that party “bears the burden of
proving that the communications are protected.” In
re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998);
see also The Navajo Nation, 225 F.R.D. at 46-47.
attorney-client privilege is the oldest of the privileges for
confidential communications known to the common law.”
Upjohn Co. v. United States, 449 U.S. 383, 389
(1981). “Its purpose is to encourage full and frank
communication between attorneys and their clients and thereby
promote broader public interests.” Id.
However, the attorney-client privilege is “narrowly
construed by the D.C. Circuit because of its adverse effects
on the full disclosure of truth.” United States v.
Philip Morris Inc., 212 F.R.D. 421, 424 (D.D.C. 2002).
Therefore, “[a] blanket assertion of the privilege will
not suffice. Rather, ‘[t]he proponent must conclusively
prove each element of the privilege.'” In re
Lindsey, 158 F.3d at 1270 (second alteration in
original) (quoting SEC v. Gulf & W. Indus.,
Inc., 518 F.Supp. 675, 682 (D.D.C. 1981)).
communication between a client and his or her lawyer is
privileged; the client must be seeking and receiving legal
advice rather than solely business advice. Compare
id. at 1267 (“The attorney-client privilege
protects confidential communications made between clients and
their attorneys when the communications are for the purpose
of securing legal advice or services.”
(emphasis added)) with Neuder v. Battelle Pac. Nw. Nat.
Lab., 194 F.R.D. 289, 292 (D.D.C. 2000)
(“[C]ommunications by a corporation with its attorney,
who is at the time acting solely in his capacity as a
business advisor, would not be privileged”
(emphasis added) (internal quotation marks omitted)).
Although corporate investigations conducted by outside
counsel often combine legal and business advice, the D.C.
Circuit recognizes that “[s]o long as obtaining or
providing legal advice was one of the significant purposes of
the internal investigation, the attorney-client privilege
applies, even if there were also other purposes for the
investigation[.]” In re Kellogg Brown & Root,
Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014). In
addition, “[c]ommunications between a [corporate]
client and its outside counsel are presumed to be made for
the purpose of obtaining legal advice.” United
States v. ChevronTexaco Corp., 241 F.Supp.2d 1065, 1073
(N.D. Cal. 2002) (citing United States v. Chen, 99
F.3d 1495, 1501 (9th Cir. 1996)); see also Boca
Investerings P'ship v. United States, 31 F.Supp.2d
9, 12 (D.D.C. 1998) (noting that “[b]ecause an in-house
lawyer often has other functions in addition to providing
legal advice, the lawyer's role on a particular occasion
will not be self-evident as it usually is in the case of
not all communication between a person and a lawyer is
privileged, the attorney-client “privilege applies only
if the person to whom the communication was made is ‘a
member of the bar of a court' who ‘in connection
with th[e] communication is acting as a lawyer' and the
communication was made ‘for the purpose of securing
primarily'” legal advice. In re Lindsey,
158 F.3d at 1270 (alteration in original) (quoting In re
Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984)).
Moreover, the privilege only applies if it “has been
(a) claimed and (b) not waived by the client.” In
re Sealed Case, 737 F.2d at 99.
safeguard the attorney-client privilege and, therefore, keep
the privilege from being waived, the client must
“zealously protect the privileged materials, taking all
reasonable steps to prevent their disclosure.” SEC
v. Lavin, 111 F.3d 921, 929 (D.C. Cir. 1997); see In
re Sealed Case, 676 F.2d 793, 818 (D.C. Cir. 1982)
(“Any disclosure inconsistent with maintaining the
confidential nature of the attorney-client relationship
waives the privilege.”). “A document will be
considered disclosed by a plaintiff when the defendant has
learned the ‘gist' of the document's
contents.” The Navajo Nation, 255 F.R.D. at 48
(some internal quotation marks omitted); see also Malco
Mfg. Co. v. Elco Corp., 307 F.Supp. 1177, 1179 (E.D. Pa.
1969) (“Once a party has made a disclosure without
objection, the only question remaining is whether it
constitutes a waiver . . . . Since this Court has determined
that the disclosure revealed the gist of the contents of a
privileged communication, such disclosure therefore
constituted a  waiver of the privilege.”).
protecting privileged materials includes ensuring, by timely
objection, that privileged information is not inadvertently
revealed during deposition testimony. Federal Rule of Civil
Procedure 30(c)(2) states that “[a]n objection at the
time of the examination . . . to any . . . aspect of the
deposition . . . must be noted on the record . . . .
An objection must be stated concisely in a
nonargumentative and nonsuggestive manner. A person may
instruct a deponent not to answer only when necessary to
preserve a privilege.” Fed.R.Civ.P. 30(c)(2) (emphasis
added); see also Charles A. Wright & Kenneth W.
Graham, 24 Fed. Prac. & Proc. Evid. § 5507 (1st ed.
1986) (“[T]he failure to object can . . . constitute a
waiver of the privilege . . . . The privilege objection must
be made before the ...