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Recently, MHTL attorneys, Kier Wachterhauser and Kevin Freytag, successfully quashed the deposition of an investigating attorney in the U.S. District Court for the District of Massachusetts in ongoing employment-related litigation. Given the fact-gathering nature of investigative work, it is not uncommon for attorneys who conduct workplace investigations and internal reviews to be the subject of discovery inquiries in litigation. Nevertheless, the attorney client privilege is not automatically waived. Courts will generally look at the nature of the investigation, the nature of the underlying legal representation, the purpose and need for the underlying discovery inquiry, and the course of discovery to date in assessing whether depositions or similar discovery should be allowed. Careful thought should be given to how investigative reports are presented and to whom, as well as the nature of communications surrounding investigations and how the material is subsequently used. Working with experienced legal counsel is a must.

 

Murphy, Hesse, Toomey & Lehane LLP is also known throughout New England for its labor and employment practice as well as its extensive business litigation and advising employers on internal reviews and strategic legal approaches when dealing with the government. The firm also has an extensive education law practice representing public, private, and nonprofit educational institutions from pre-K through the college and university level.