Smith v. Ergo Solutions, LLC, Civil Action No. 2014-0382

Plaintiffs Twila Smith and Deirdre Osbourne sued Ergo Solutions, LLC and managing partner George Brownlee alleging pervasive sexual harassment and seeking relief under Title VII and the D.C. Human Rights Act.
In 2009 Ergo retained outside counsel Donald Hartman to investigate separate sexual-harassment complaints against Brownlee and Hartman produced a written internal investigation report labeled "Attorney-Client Privilege."
Plaintiffs moved to compel production of that report; defendants asserted attorney-client privilege. The court reviewed the report in camera and found it contained legal analysis and legal recommendations about liability and litigation strategy.
At depositions, former HR director Jerry Warren and Brownlee discussed the report; Warren testified about Hartman’s view that Brownlee was at fault, and Brownlee testified without objection about the report’s recommendations (stay away six months, $10,000 fine, therapy).
The court held the report was privileged because one significant purpose was legal advice, but found the privilege waived when Brownlee—an Ergo managing partner with authority to waive corporate privilege—disclosed the report’s key conclusions during his deposition without timely objection.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the internal investigation report is protected by attorney-client privilege	Report is business advice, not legal, so not privileged	Hartman was outside counsel and the report provided legal advice; thus privileged	Report is privileged because it includes legal conclusions, recommendations and litigation strategy
Whether Warren’s deposition waived privilege	Warren disclosed Hartman’s findings, waiving privilege	Warren was a former employee and lacked authority to waive corporate privilege	Waiver by Warren? No — former employee cannot waive corporate privilege
Whether Brownlee’s deposition waived privilege	Brownlee’s testimony revealed the report’s recommendations, waiving privilege	Brownlee and Ergo seek to keep the report privileged despite his disclosures	Yes — Brownlee, as managing partner, waived privilege by revealing the gist of report without objection
Scope of compelled production	Plaintiffs seek the report (not counsel notes)	Defendants opposed production of the report	Court ordered production of the report; notes appended to report not sought by plaintiffs remain out of scope

Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (privilege encourages full communication between attorneys and clients)
In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) (party asserting privilege bears burden to prove it applies)
In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) (disclosure inconsistent with confidentiality waives privilege)
In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014) (privilege applies if obtaining legal advice was a significant purpose of investigation)
The Navajo Nation v. Peabody Holding Co., 255 F.R.D. 37 (D.D.C. 2009) (disclosure of the "gist" of privileged document constitutes waiver)