An investigation of an employee’s sex harassment and discrimination complaint by an outside attorney hired by the employer was a privileged even if the attorney gave the employer no advice about how to proceed based on the investigation’s results.  Despite offering no advice about what to do based on the investigation, the lawyer rendered legal services to the employer in applying her legal experience and skills in investigating and evaluating the facts.  Thus, her investigation was protected be both the attorney-client privilege and the work product protection. Also, the employer did not waive the attorney-client privilege by raising an avoidable consequences defense to the employee’s later Title VII and DFEHA complaint.  The avoidable consequences doctrine is a defense that an employer may raise to discrimination/harassment complaints against supervisors by showing that the employer took reasonable steps to prevent and correct workplace sexual harassment, the employee unreasonably failed to use those measures, and reasonable use of them would have prevented at least some of the harm.  The defense focuses solely on conduct of the employer and employee.  It does not put a post-harassment investigation in issue and so does not waive any privilege adhering to such an investigation.

California Court of Appeal, First District, Division 3 (McGuiness, P.J.); June 8, 2016 (published June 30, 2016); 2016 WL 3568106