As I wrote about earlier this week, among the challenges Tom Brady is making in the appeal of his 4-game suspension is a challenge to the NFL’s assertion that the investigation file and the communications between the NFL and the attorney who conducted the Deflategate investigation are privileged. According to media coverage, Tom Brady requested a copy of the investigation file and of the communications between the NFL and Wells as a part of his appeal and the NFL refused asserting the attorney-client privilege.

Brady has now appealed and the suspension will be reviewed and decided by a federal judge unless the parties can resolve their own dispute through negotiations or mediation.

Deflategate highlights a recurring issue that arises when employers retain an attorney to conduct an attorney-client privileged internal investigation into allegations of workplace misconduct: What happens to the privilege if the employer later wants to rely on the results of the privileged investigation to defend the business decision it made as a result of that investigation?

As I explained in my earlier blog, courts generally have held that employers waive the privilege where they rely on the investigation as an affirmative defense in subsequent litigation.

Deflategate stands as an important reminder to employers to understand the scope of the attorney-client privilege, and to take appropriate steps to avoid unintended waivers of the privilege in connection with workplace investigations.

5 Tips for Preserving the Privilege & Avoiding Inadvertent Waiver

1. If it is anticipated that the workplace investigation may be raised as a defense to a legal claim or otherwise voluntarily disclosed, the employer should consider retaining an investigating attorney different than its regular legal counsel. This will make it easier for the employer to limit its waiver of the privilege to the fact-finding investigation without risking a court later finding that the waiver was broader and the employer inadvertently waived the privilege as to other matters on which the investigating attorney has provided legal advice to the employer.

2. Avoid having the investigating attorney participate in communications between the employer and its regular counsel regarding matters of legal advice. To be even more granular and mitigate the risk of an inadvertent waiver, the employer’s regular legal counsel should consider limiting his or her communications with the investigator to (i) listening to (or receiving) the investigator’s report(s) and (ii) asking follow-up questions of the investigator. Moreover, the employer’s regular counsel should not disclose to the investigator any legal advice that counsel provided to his or her client.

3. Employers and their regular counsel should take the time to define carefully the scope and responsibilities of the participants in the investigation. By taking the time to identify and insulate those who will investigate the facts from those who will make employment decisions based on those facts, a court deciding whether communications with counsel are privileged will be able to distinguish between communications regarding the fact-finding process as compared to communications regarding the decision-maker’s assessment of the facts.

4. The employer and investigating attorney should take steps to make clear that the investigation is being conducted to obtain legal advice. This includes advising all witnesses interview of the legal purpose of the investigation and marking materials as “PRIVILEGED AND CONFIDENTIAL.”

5. The employer should treat as confidential all investigation-related materials and limit distribution.

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