Relying On An Investigation May Not Forfeit All Privilege Protection

Clients relying on an investigation's result to gain some advantage understandably trigger a subject matter waiver. But some courts recognize that those clients may still claim privilege for some related communications.

In Thomas v. Marshall Public Schools, — F. Supp. 3d —, 2023 U.S. Dist. LEXIS 156933 (D. Minn. Sept. 6, 2023), defendant school system indicated that it would rely on outside lawyers' investigation report to defend against the principal's allegation that she was improperly demoted. The defendant school district produced the investigation report, and the court allowed the plaintiff to depose the investigating outside lawyers. But the court prohibited plaintiff from inquiring into the outside lawyers' "legal advice . . . regarding whether to conduct the investigation, and how to respond to the investigation findings and conclusions." Id. at *32-33. The court noted that "[t]hese topics are not addressed in the Investigation Report." Id.