We have noticed a trend that employees are inevitably seeking orders for discovery or production of documents relating to workplace investigations in disciplinary proceedings and litigation related to workplace claims.
Claims of LPP in workplace matters are often scrutinised as the documents relating to an investigation are ‘high value’ for the parties in a dispute and the relevant decision maker.
Why is LPP Important in Workplace Investigations?
Workplace investigations become necessary for a variety of reasons ranging from a potential safety breach, allegations of misconduct or general compliance related issues. These investigations typically address sensitive and technical matters, and it is crucial for employers to be properly advised in respect of establishing and LPP.
There are a number of reasons why an employer should ensure that they establish LPP over a workplace investigation, the key reasons related to protecting an employer include:
1. Confidentiality: LPP ensures that communications and documents related to legal advice or litigation are kept confidential. This means that sensitive information uncovered during an investigation is protected from being disclosed to third parties, including during legal proceedings.
2. Protection from Litigation: If an investigation is conducted in anticipation of litigation, establishing LPP can protect the findings and communications from being disclosed to the opposing party. This can be crucial in maintaining a strategic advantage in legal disputes.
3. Managing Reputational Damage: In high-profile cases, maintaining LPP can help control the narrative and manage public relations. By keeping sensitive information confidential, employers can avoid potential reputational damage that could arise from public disclosure of investigation details.
*An employer can always choose to waive LPP if it ultimately seeks to rely on findings in an investigation. However, LPP cannot be retrospectively applied.
Establishing LPP over an Investigation
The ‘dominant purpose’ test can be relied on to establish LPP which requires that a document or communication is prepared for the dominant purpose of obtaining legal advice or for use in anticipated litigation.
LPP can be established in circumstances where an investigation is done:
1. Internally: where an issue arises that requires investigation, immediately seek advice from in-house counsel in relation to the issue. In-house counsel can then request an investigation from an internal party ‘for the purpose of giving legal advice’ in respect of the issue. This should be communicated in writing clearly stating the scope of the investigation and that it is required for the purpose of giving legal advice. In-house counsel can, in the same way, engage an external investigator.
2. Externally: engaging external legal advisors at the outset creates an additional layer in establishing privilege. External legal advisors can engage either an internal party or an external investigator to carry out an investigation through an engagement letter which clearly establishes the scope and the purpose of the investigation being for the purpose of giving legal advice.
Communicating confidentiality to the parties involved and restricting access to information relating to an investigation is crucial to maintaining a claim of LPP.
Waiving LPP
Once an investigation is completed, if it is in the interests of an employer to rely on the findings then it can always make the strategic decision to waive LPP.
This decision often needs to be balanced having regard to the risks of disclosing confidential information relating to the employer and/or other employees and the evidentiary weight/benefit of disclosing the findings in an investigation.
Key Tips to Ensure LPP is Established
1. Engage Legal Advisors Early: Ensure that legal advisors are engaged at the outset of the investigation. This helps to establish that the dominant purpose of the investigation is to obtain legal advice. Clearly outline in engagement letters that the purpose of the investigation is to provide legal advice. This documentation can be crucial in demonstrating the intent behind the investigation.
2. Confidentiality/Avoiding Waiver: Maintain the confidentiality of the communications and documents. Any disclosure to third parties can potentially waive the privilege. Ensure that all parties involved in the investigation are aware of the need to preserve confidentiality. Be cautious about any actions that might waive privilege, such as disclosing the contents of privileged documents publicly or to third parties. Even partial disclosure can result in a waiver of privilege over the entire document.
3. Documentation and Communication: Clearly document and communicate that the investigation is being conducted for the purpose of obtaining legal advice. This includes any protocols or instructions given to those involved in the investigation. Ensure that the investigation and any resulting reports are not for mixed purposes. The dominant purpose must be legal advice, not other business or administrative purposes.