United States District Court, D. New Hampshire
K. Johnstone, United States Magistrate Judge.
the court in this employment discrimination case is plaintiff
Marc Martel's motion to compel discovery (Doc. No. 24).
Defendant Computer Sciences Corp. (“CSC”)
objected, and, after oral argument, the parties supplemented
their filings. For the reasons that follow, plaintiff's
motion is denied.
claims he was fired in August 2014 because of his age. CSC
maintains that Martel's termination was part of a
permissible reduction in force (“RIF”). Prior to
his termination, Martel filed an internal ethics complaint
regarding a performance review. After receiving notice of the
RIF, Martel again complained to CSC's Ethics and
Compliance Office (“ECO”), stating his belief
that his termination was unlawful. The ECO investigated
Martel's complaints and prepared a Report of
Investigation for CSC's Director of Global Compliance,
Investigation and Litigation, an attorney. Martel requested
production of the report. CSC declined to produce the report,
relying on the attorney-client and work product privileges.
Martel does not dispute that the report is privileged, but
instead argues that CSC impliedly waived the privileges'
protection by asserting the following affirmative defense in
Defendant did not the violate statutes cited in the
Complaint; alternatively, Defendant made good faith efforts
to comply with employment-related laws, and any
discriminatory act, omission, or decision by any managerial
agent would have been contrary to those efforts.
Answer (Doc. No. 20) at 60, ¶ 6.
argues that CSC's invocation of “good faith”
in this affirmative defense necessarily suggests that CSC is
“relying on the investigation, the results of the
investigation, and/or the reasonableness of the
investigation.” Pltff. Response (Doc. No. 35) ¶ 3.
Asserting privilege in the face of such reliance, Martel
argues, would be contrary to decisions from this and other
courts finding “it unfair and illogical to allow an
employer to assert the reasonableness of an investigation as
an affirmative defense, and, at the same time, withhold
relevant evidence under the guise of privilege or work
product protection.” Walker v. N.H. Admin. Office
of the Courts, Civ. No. 11-cv-421-PB, 2013 WL 672584, at
*6 (D.N.H. Feb. 22, 2013).
plaintiff has cited the correct legal principle, that
principle is inapposite here because the defense has
repeatedly indicated that it has no intention of relying on
the contents or conclusion of the investigative report to
defend this case. Instead, the defendant intends to support
its affirmative defense “with evidence of its Equal
Employment Opportunity Policy, Code of Business Conduct,
employee acknowledgements, training practices, etc.”
Pltff. Opp. (Doc. No. 25) ¶ 19. This is not a case, as
plaintiff contends, where the defense is impermissibly trying
to use the privilege “as a sword and a shield.”
Walker, 2013 WL 672584, at *6. See Pollitt
v. N.C. Prisoner Legal Servs., Inc., No. 5:05-CV-220-BO,
2006 WL 8438635, at * 2 (E.D. N.C. Sept. 22, 2006)
(“Where employers disavow reliance upon their
investigations as a defense, the attorney-client privilege is
only remaining argument is that CSC might use the
investigative report as rebuttal evidence should Martel
“open the door” during his own testimony. Pltff.
Reply (Doc. No. 30) at 1-2. This argument is premature. The
court's ruling herein is made without prejudice to
revisiting the issue if appropriate.
reasons set forth herein, plaintiff's motion to compel
(document no. 24) is denied.
 Nor is CSC asserting a so-called
Faragher-Ellerth defense, under which an employer
may be shielded from liability if it can show by a
preponderance of the evidence that it both “exercised
reasonable care to prevent and correct promptly any . . .
harassing behavior” and that the “employee
unreasonably failed to take advantage of any preventative or
corrective opportunities provided by the employer or to avoid
harm otherwise.” Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City
of Boca Raton, 524 U.S. 775 (1998). Where, as here, a
tangible employment action has been taken against the
employee, the Faragher-Ellerth defense is
unavailable. See Ellerth, 524 U.S. at 765 (“No
affirmative defense is available, however, when the
supervisor's harassment culminates in a tangible
employment action, such as discharge, demotion, or
 Relatedly, Martel argues that CSC is
likely to rely on its internal investigation - and thus
waived any applicable privileges - because it cited the
investigation in its response to the Charge of Discrimination
Martel filed with the New Hampshire Commission for Human
Rights. There appears to be no authority supporting the
proposition that a party's inclusion or reference to an
internal investigation in EEOC proceedings necessarily waives
the privilege. See Robinson v. Time Warner, Inc.,
187 F.R.D. 144, 147 (E.D.N.Y. 1999) rejecting waiver claim
where employer's EEOC response discussed investigation
and findings where employer was not relying on adequacy of