Attorney-client privilege wins out in fight to share harassment claim investigation report

By Carrie Salls | Aug 3, 2016

PETALUMA – A California appeals court ruled in June that the city of Petaluma is not required to share a report related to the investigation of a 2014 sexual harassment claim filed against the city by former Petaluma firefighter and paramedic Andrea Waters.

Waters’ attorneys requested access to the city’s report as part of their information-gathering process. Last year, a Sonoma County court granted Waters’ attorneys’ request to review the report. The city argued that it should not have to share the findings based on attorney-client privilege.

The California 1st District Court of Appeals reversed the lower court ruling on June 8. The appeals court originally elected not to review the case when the city appealed the Sonoma court’s order, but the California Supreme Court ultimately agreed to consider the case and remanded it back to the court of appeals.

Petaluma City Attorney Eric W. Danly said the city is pleased with the appeals court’s ruling. He said he is not aware of any request for review of the ruling by the California Supreme Court.

“I believe that the court of appeal’s ruling is consistent with existing case law governing attorney-client communications,” Danly told the Northern California Record.

In particular, Danly cited a 2009 case, Costco Wholesale Corp. v. Superior Court. He said the court in that case ruled that confidential communications between attorneys and clients, where the attorney was retained to provide legal services, are subject to the attorney-client privilege, and not subject to disclosure absent consent of the client holding the privilege.

“We believe the superior court ruling misapplied the law in determining that the investigation report regarding the Waters allegations, and related records and information prepared by the attorney retained to produce the report, are subject to disclosure,” Danly said.

Danly said amicus briefs were filed in support of Petaluma’s appeal by the League of California Cities, the California State Association of Counties, the California Association of Joint Powers Authorities, the California Special Districts Association and the Association of Workplace Investigators.

“We think the amici did a great job underscoring for the court the important public policies supporting employers, including public agency employers, conducting thorough workplace investigations in response to workplace complaints, and being able to protect such investigations via the attorney-client and work-product privileges when they are performed by attorneys retained for that purpose,” Danly said.

Danly said public agencies and other employers need to have a chance to perform a thorough investigation into workplace allegations and be protected by the attorney-client privilege when possible. He said such investigations allow employers to assess the merits of workplace complaints in an effort to keep workplaces safe and free from discrimination.

Waters’ attorney, Deborah Kochan, did not respond to repeated requests for comment.

In her lawsuit, Waters alleges that she was harassed and was the subject of workplace discrimination for nearly her entire tenure as a Petaluma firefighter and paramedic, which began in 2008. In addition to being allegedly denied access to the training required for promotions, Waters’ lawsuit claimed that she did not have private quarters or shower facilities at work.

Waters said the alleged harassment caused her extreme stress. As a result, she took a leave of absence in February 2014 and left the department in May of the same year.

The city said its records do not show that any formal complaint was ever filed by Waters while she worked for the fire department. Petaluma claims it received notice just before Waters resigned that she had filed a sexual harassment and retaliation complaint with the U.S. Equal Employment Opportunity Commission.

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