Opinion
CV 00-6454 (TCP)(WDW)
September 28, 2001
ORDER
Before the court is a letter motion by the plaintiffs, dated August 3, 2001, to compel the production of documents and information concerning the defendant Nassau Health Care Corporation's (NHCC) internal investigation of Plaintiff Sally McGrath's sexual harassment claims. See Locke Letter. The motion is opposed by NHCC's letter dated August 14, 2001. See Clark Letter. On September 10, 2001, at the request of the court, NHCC submitted the documents at issue for in camera review, and the court ordered oral argument, which took place on September 26, 2001. For the reasons set forth below, the plaintiffs' motion to compel is granted.
BACKGROUND
This lawsuit involves claims of sexual harassment of the plaintiff, Sally McGrath, by defendant Eric Rosenblum. The plaintiffs also claim that NHCC, which employed both McGrath and Rosenblum, negligently permitted Rosenblum to continue his harassment practices. After allegedly hearing reports of McGrath's claims from a third party, representatives of NHCC met with McGrath on July 20 and 21, 2000 to "discuss and implement corrective actions" in response to McGrath's allegations of sexual harassment. See Clark Letter at 1. On July 21, McGrath was reassigned to a new department. On July 25, she filed a charge of discrimination with the EEOC. The privilege log submitted by NHCC suggests that interviews of individuals at NHCC by NHCC's outside counsel, Amy L. Ventry, continued until at least late August 2000. Other investigatory tasks took place in September 2000.
Plaintiff moved to file an Amended Complaint, and the motion was granted by order of District Judge Platt dated August 30, 2001. As of the date of this order, no Answers to the Amended Complaint are reflected in the Court's docketing system.
DISCUSSION
Federal Rule of Civil Procedure 26(b)(1) allows discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. The information sought by the plaintiffs on this motion is undeniably relevant, but NHCC claims that it is protected from disclosure by the attorney-client and/or work product privileges. Those privileges are not, however, absolute, and the plaintiffs argue that any privilege that may apply has been implicitly waived by virtue of the "at issue waiver" doctrine, where, as here, the adequacy of the internal investigation and the defendant's response to it are at issue. Locke Letter at 2-3.
"Where a litigant asserts a claim that in fairness requires examination of a privileged communication, courts have held the protections of the attorney/client privilege and the work product doctrine implicitly waived." Worthington v. Endee, 177 F.R.D. 113, 116 (N.D.N.Y. 1998) (citing United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.), cert. denied, 502 U.S. 813 (1991)). The Worthington court noted that implicit waiver, also known as "at issue waiver," may include the characteristics of "(1) a litigant asserting a privilege; (2) placing `at issue' the protected communication through an affirmative act such as a claim of an affirmative defense; and (3) making the protected communication relevant information and necessary to the original claim of the adversary." 177 F.R.D. at 116 (citing Kidder, Peabody Co. v. IAG Int'l Acceptance Group, 1997 WL 272405, at *4 (S.D.N.Y. May 21, 1997) Tribune Co. v. Purcigliotti, 1997 WL 10924, at *6 (S.D.N.Y. Jan. 10, 1997)).
Here, the plaintiffs argue that NHCC, like the defendant in Worthington, put its internal investigation "at issue" by asserting an affirmative defense of appropriate remedial action. Locke Letter at 2-3. The Fourth Affirmative Defense set forth in NHCC's Answer to the original Complaint states in relevant part that NHCC "is not liable because it exercised reasonable care to prevent and promptly correct any sexually harassing behavior . . ." NHCC's Answer at 6. The plaintiffs claim that the investigation was part of the remedial action attempted by NHCC because such an investigation was "mandated by the Hospital's own written policy as part of its procedure for remedying sexual harassment." Locke Letter at 1; Nassau County Medical Center Policy/Procedure Manual, Ex. C to Locke Letter, at 4. The policy requires that "[a]ny supervisor or manager who becomes aware of any possible discrimination or harassment should immediately advise the Hospital Legal Counsel or Director of Human Resources, who shall cause an investigation to occur and remedy any violation found to have occurred."
NHCC, on the other hand, argues that its investigation cannot be considered part of the remedial action because "it did not commence untilafter Mrs. McGrath filed her discrimination charge, and was done in anticipation of litigation." Clark Letter at 2 (emphasis in original). NHCC also claims that "it took immediate corrective measures, agreed to by Mrs. McGrath, prior to any investigation conducted into her allegations." Id. (emphasis in original). "In sum," NHCC claims, it "implemented corrective measures in response to Mrs. McGrath's allegations before any investigation occurred and the investigation conducted by outside counsel did not start until after Mrs. McGrath had filed an EEOC Charge of Discrimination against NHCC." Id. (emphasis in original).
NHCC's argument is not only without legal merit, but includes claims that are simply untrue. NHCC emphatically states that its investigation "did not commence until after Mrs. McGrath filed her discrimination charge," on July 25, 2000. Clark Letter at 1-2. However, the "Investigation Report Regarding Allegations Made by Sally Pistorio McGrath Against Eric Rosenblum," prepared by Ms. Ventry and submitted for in camera review, expressly states that a decision to conduct the investigation was made on July 24, 2000, and it began on that day, the day before Ms. McGrath filed her EEOC charges.
In any event, this court is not convinced that the issue of whether the investigation commenced the day before the EEOC charge or the day after the EEOC charge is determinative. The issue here is whether the corrective actions taken by NHCC were reasonable in light of what it learned from its investigation. Although the Fourth Affirmative Defense does not expressly allege that the investigation and the remedial acts flowing from it were adequate, that is the only sensible inference to be drawn from NHCC's claim that it "exercised reasonable care to prevent and promptly correct any sexually harassing behavior." Where, as here, an employer defends itself "by relying upon the reasonableness of its response to the victim's allegations, the adequacy of the employer's investigation becomes critical to the issue of liability. The only way that Plaintiff, or the finder of fact, can determine the reasonableness of [the employer's] investigation is through full disclosure of the contents thereof." Brownell v. Roadway Package Sys., Inc., 185 F.R.D. 19, 25 (N.D.N.Y. 1999). And, the fact that the employer "chose to enlist its attorney to act with dual purpose does not provide sufficient basis to overcome the unfairness of limiting the information it provides." Harding v. Dana Transp., Inc., 914 F. Supp. 1084, 1099 (D.N.J. 1996).
Nor, as noted supra, does the date on which McGrath filed her EEOC claim impact the necessity of producing the material. As the court in Worthington observed, the defendant's claim that the investigation was not itself a remedial action and does not place "at issue" the report and notes of that investigation rang hollow where the investigation was begun fourteen days after the plaintiff had filed a notice of claim. 177 F.R.D. at 117-18. That court specifically held that "[a]s long as the defendants continue to assert the affirmative defenses that they took effective remedial action and that [the individual defendant's] alleged conduct was not unwelcome, the entire report [of the internal investigation] is `at issue." Id. Thus, the court ruled, the defendants implicitly waived any privileges, and the report had to be produced.
The same result is indicated here. The defendants shall produce the report and notes within ten days of the date of this order. The court orders, moreover, that Section V of Ms. Ventry's report, captioned "Eric Rosenblum's Response to Sally McGrath's Allegations," which was inexplicably deleted from the copy submitted to the court for in camera review, must be produced, along with the material apparently deleted from page ten of Ms. Ventry's report, and any other deleted materials.