ORDER
BACKGROUND
Fоr a factual background and procedural history, we refer to our Report and Recommendation, 90 Civ 2379 (VLB), filed September 5, 1990, familiarity with which is assumed. Since the date of that Report, discovery has been proceeding under our direction. The instant matter concerns certain discovery requests and deposition questions, from which defendants seek a protective order based on their assertion of attorney-client privilege. The primary document at issue is a Memоrandum, dated January 20, 1989, from Robert E. Diaz, then State Education Department’s General Counsel, to Lionel Meno, a Department Official. The document was drafted by Charles E. O’Brien, an attorney in the State Education Department Office of Counsеl and concerns “allegations made by Iris and Bernard Mitzner of improprieties in the Spring 1988 fifth grade writing test at Goshen Central School.” The Memorandum is headed with the following conspicuous label: “PRIVILEGED AND CONFIDENTIAL ATTORNEYS WORK PRODUCT” and has been submitted to the court for in camera inspection.
ATTORNEY-CLIENT PRIVILEGE
In Upjohn, the Supremе Court broadened the scope of the attorney client privilege to include communications between employees of a corporation and corporate counsel. Upjohn v. United States,
We decline to lay down a broad rulе or series of rules to govern all conceivable future questions in this area, even were we able to do so. We can and do, however, conclude that the attorney-client privilege protects the communications involved in this case from compelled disclosure and that the work-product doctrine does apply in tax summons enforcement proceedings.
Id. at 386,
The scope of the holding in Upjohn, with respect to the attorney-client privilege, is, thus, expressly limited to employees “resрonses to questionnaires and any notes reflecting responses to interview ques-tions____” Id.,
Defendants contend that Upjohn applies to the instant situation and propose an analogy between thе state educational hierarchy and a corporation. If we adopt, ar-guendo, defendants’ analogy, Upjohn is not necessarily dispositive of the issues raised in the instant case. The Court did not address the following relevant questions in Upjohn:
1) Whether litigation between the corporation entity and an employee waives the attorney client privilege, particularly*361 if the employee is a “whistleblower” and merely one of many employees whose communications to counsel, relevant to the whistleblowing and ensuing investigative report, are at issue.
2) Whether the work-product rule should apply to an investigative report prepared as the result of a whistleblower’s complaint, where the only possible litigation reasonably anticiрated, at the time, were retaliatory proceedings brought to discipline the whistleblower, and where the instant civil rights litigation is a direct result of those disciplinary proceedings. In such a case, the work-product can not be said to hаve been prepared in anticipation of the litigation now in progress and the investigative report is the only direct evidence of certain conduct of the supervisors who brought or condoned the alleged retaliatory disciplinary proceedings.
By broadening the scope of both the attorney-client privilege and protection for work-product utilizing employee communications, the Court has necessarily broadened the potential for waiver of the privilege in litigation involving the corporation, or analogous entity, and those persons included within the broadened scope. In other words, in certain contexts, the employees, i.e., agents of the corporatiоn, are collectively the “client”; corporate counsel, also an agent of the corporation, is the attorney. Once the corporation brings proceedings against an employee there is an adversariаl relationship between this ficti-tional “client” and “attorney”. It is, of course, a basic principal of the common law of privilege that litigation between the client and the attorney waives the privilege.
Continuing with the corporate analogy in the instant case, however, the employee against whom action was taken and who is, hence, now suing the corporation, is not one of the employees from whom information was gathered for the preparation of the interim report relevant to the proceedings; however, her information was the impetus for the investigation and is necessarily a part of the interim report. The particular communication of one employee to corporate counsel is not at issue but, rather, the accumulated information gathered from the “client” group of which that person is, otherwise treated as a member.
The question of waiver is, thus, not a simple one. But are we to permit the employees, as a group, to be treated as the “client” so that the privilege can be used as a shield to protect, from third party adversaries, the corporate entity and all those within the broad definition of “сlient”, as a commonly interested group, and then permit the corporation to single out one member of that same group, when the information—gathered as part of an internal investigation—is ultimately used for a purpose adverse to that member. The expanded privilege is there used as a sword, if not a knife in the back. A fundamental unfairness and double standard seems to emerge from these circumstances.
When this hypothetical corporate environment is superimposed on the background of a state’s educational hierarchy, public policy and public interest in education, and in those responsible for administering it, certainly adds no weight to the argument for nondisclosure. This is not to say that a strong public interest can overcome the absolute attorney-client privilege but, rather, that there is no public interest or policy reason to justify the above-described double standard and unfairness. “The policy of privilege is to protect confidential attorney-client relationships only to the extent that the injury the relationship would suffer is greater than the benefut to be gained thereby.” Hearn v. Rhay,
Federal courts have held thаt the filing of suit, by the party asserting a privilege, or an affirmative act, which places the privileged information or communications at issue, waives the privilege so as to allow opposing party access to information for her defense. Hearn, supra,
The factors common to each exception [to the rules of privilеge] may be summarized as follows: (1) Assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the casе; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. Thus where these three conditions exist, a court should find that the party asserting the privilege has impliedly waived it through his own affirmative conduct.
Id. at 581.
Here the party asserting the privilege is the defendant in the lawsuit. The waiver doctrine still applies however because defendants raise the affirmative defense of qualified immunity, thus placing this relevant information at issue. See Answer, filed May 2,1990, Affirmative Defense “8”, at 17.
Therefore, all the elements common to а finding of waiver are present in this case; defendants invoked the privilege in furtherance of an affirmative defense they asserted for their own benefit; through this affirmative act they placed the protected information at issue, for the legal advice they received is germane to the qualified immunity defense raised.
Id.
WORK-PRODUCT
In Hickman v. Taylor,
Without deciding the question, the Supreme Court, in Upjohn, acknowledged that “a stronger showing of necessity and unavailability by other means is required” in order to obtain work-product consisting of an attorney’s evaluation of attorney-client communications, which themselves are privileged. Upjohn, supra,
We find that the same policy reasons for excepting the communications underlying the report from the attorney-client privilege apply with respect to work product. The affirmative defense of qualified immunity places not only the investigation itself at issue but the advice given to the supervisory persons named as defendants. We find nothing in the interim report, examined in camera, that would jeopardize the
The defendants are hereby ordered to produce the Interim Report and any other documents pertaining to communications between defendants and counsel regarding the original Mitzner complaints and ensuing investigation and proceedings. All objections to questions concerning said subject matter are overruled and will not be sustained at future depositions.
SO ORDERED.
Notes
. Defendants Sobel and Chew had neglected to file an Answer after our Report recommending denial of their Motion to Dismiss the Complaint was adopted by the Honorable Vincent L. Bro-derick on February 14, 1991. Assistant Attorney General Clement J. Collucci responded promptly to our direction that an Answer be immediately filed before the pending depositions of defendants. A copy of the Answer of defendants Sobel and Chew was received in our chambers by facsimile machine on April 2, 1991. The Answer includes the Affirmative Defense of qualified privilege at paragraph 95.