Lead Opinion
*238This review presents a significant issue regarding the boundaries of attorney-client privilege and work-product protection. We must decide whether plaintiff's counsel may depose defense counsel and obtain counsel's prelawsuit work product. After leaving his job, plaintiff filed an administrative complaint charging his former employer with race discrimination. In response to the charge, the employer hired an attorney to defend the company and investigate the merits of the charge. The employer filed an administrative position statement wherein it relied upon the attorney's investigation to support its Faragher - Ellerth affirmative defense. In the subsequent civil action, the employer retained the same attorney and again raised the affirmative defense. The employer claimed attorney-client privilege and work-product protection over the investigation and moved for a protective order to prevent plaintiff from deposing defense counsel and obtaining her investigation notes. Yet, in its motion for summary judgment, the employer again relied upon the investigation to support its defense. The district court denied the protective order, and we granted the employer's interlocutory appeal.
We conclude the district court did not abuse its discretion by denying the defendants' protective order. When an employer raises a Faragher - Ellerth affirmative defense and relies upon an internal investigation to support that defense, the employer waives attorney-client privilege and nonopinion work-product protection over testimony and documents relating to the investigation. On remand, the employer is permitted to amend its answer and brief to limit the affirmative defense to only the period of plaintiff's employment. If the employer declines to so amend, it may not claim attorney-client privilege or work-product protection over the 2013 investigation, and plaintiff may depose defense counsel as well as obtain counsel's investigation notes.
I. Factual Background and Proceedings.
Oliver Fenceroy, an African-American man, was employed by Gelita USA, Inc. (Gelita), a maker of gelatin products. He began working at Gelita's Sergeant Bluff plant in 1975. In this lawsuit, he alleges he experienced consistent racial harassment from coemployees and supervisors throughout his employment. His complaint identified a number of workplace incidents involving racially disparaging comments by employees.
Gelita implemented an antiharassment policy that barred disparate treatment in the workplace on the basis of race. Fenceroy acknowledged receiving a written memorandum that discussed the antiharassment policy in August of 2010. Additionally, Fenceroy attended company trainings in 2011, 2012, and 2013 that discussed workplace harassment. He also received copies of Gelita's Code of Conduct, which contained the company's antiharassment policy, in 2011 and 2012. Further, *239Gelita conducted a survey in 2012 that requested anonymous feedback about potential problems or changes to the company. Fenceroy received the survey but did not report any harassment.
Gelita's antiharassment policy contained detailed reporting procedures. The policy instructed employees to report any harassment to their supervisors or to the human resources department. If an employee is harassed by his or her direct supervisor, the policy permitted an employee to bypass that individual and report the harassment to the supervisor's superior.
It is undisputed that Fenceroy only made one complaint to Gelita about racial harassment. In September of 2011, Fenceroy complained to Gelita's Vice President of Business Support, Jeff Tolsma, about a rope tied on the company's production floor. Fenceroy believed it represented a noose. Tolsma notified the plant's production manager, Jeremie Kneip, of the complaint. The two individuals located the rope and determined it was not a noose, but rather a loop used to facilitate pulling a scale downward. Nevertheless, they untied the knot so there was no longer a loop in the rope.
Fenceroy stopped working for Gelita in March 2013. He filed a complaint with the Iowa Civil Rights Commission (ICRC) a short time later. The complaint charged Gelita with race discrimination. Upon receipt of Fenceroy's ICRC charge, Gelita retained attorney Ruth Horvatich and tasked her with developing a strategy to defend the company during administrative proceedings.
Pursuant to this representation, Horvatich interviewed several Gelita employees to ascertain the merits of Fenceroy's complaint. Tolsma was present for and participated in each interview. A union representative, John Hoswald, was also present during the employee interviews. At the end of each interview, Horvatich drafted a witness statement that summarized the employee's account and instructed the employee to sign the document.
Horvatich's investigation revealed some Gelita employees had made racially disparaging comments in the workplace. Gelita subsequently terminated one employee, Bob Kersbergen, and disciplined others, including Kent Cosgrove, Tom Haire, and Lewis Bergenske. Horvatich did not participate in any of the disciplinary decisions.
On May 30, 2013, Gelita filed a position statement with the ICRC in response to Fenceroy's discrimination charge. The statement, drafted by Horvatich, addressed the merits of Fenceroy's racial harassment claim. It argued Gelita could not be held vicariously liable for supervisor harassment because it could assert the Faragher - Ellerth affirmative defense. Specifically, in discussing the affirmative defense, Gelita argued,
[T]he Company distributed a valid discrimination and harassment policy, which contained flexible reporting procedures and listed individuals that acts of harassment could be reported to, who were in a position to take corrective action. The discrimination and harassment policy also contains detailed procedures relating to the investigation and resolution of complaints. After learning of Complainant's complaint relating to the rope, the Company took immediate action. The same day of the complaint, the Company performed an investigation and resolved the complaint by untying the knot that was in the rope, which has remained untied since that time. The Company notified the Complainant of this resolution. Additionally, after the Complainant filed the charge at issue with the Iowa Civil Rights Commission, the Company investigated the allegations of harassment, which resulted in *240the termination of Mr. Kersbergen and the discipline of Mr. Haire, Mr. Bergenske, and Mr. Cosgrove. During his employment, Complainant only made one report of harassment and unreasonably failed to report any other allegations to management, despite the Company's clear reporting procedures. Thus, it is clear that the Company exercised reasonable care to prevent harassment, promptly corrected any harassing behavior , and the Complainant unreasonably failed to take advantage of the Company's clear reporting procedures. As a result, the Complainant's allegation of racial harassment fails.
(Emphasis added.) Thus, the statement Gelita filed with the ICRC signaled it would rely on its investigation into the complaint to help support the first prong of its affirmative defense that it exercised reasonable care to prevent and correct harassing behavior.
At the culmination of the administrative proceedings, the ICRC issued Fenceroy a right to sue. On May 30, 2014, Fenceroy filed a civil action in district court against Gelita and four named employees: Bob Kersbergen, Tom Haire, Jeff Tolsma, and Jeremie Kneip. Fenceroy alleged the defendants engaged in racial harassment in violation of the Iowa Civil Rights Act and he was constructively discharged. He also alleged Kersbergen and Haire engaged in tortious infliction of severe emotional distress.
Gelita again retained Horvatich to defend the company, as well as Haire and Tolsma, in the civil action. The defendants filed an answer that raised a number of affirmative defenses. One defense alleged Fenceroy "unreasonably failed to take advantage of any preventative or corrective opportunities provided by Defendant Gelita"; and Gelita "exercised reasonable care to prevent and promptly correct any harassing behavior."
During discovery, defendants produced the witness statements drafted by Horvatich and signed by the employees during her 2013 investigation. Fenceroy deposed some of the employees Horvatich interviewed during the investigation. He also deposed Tolsma and inquired into the nature and scope of the 2013 investigation, as well as the subsequent disciplinary decisions.
On March 23, 2016, counsel for Fenceroy issued a notice to depose Horvatich. He also requested Horvatich provide "notes from the investigation that resulted in Gelita's Position Statement," as well as any "notes from interviews" with Gelita employees.
Defendants moved for a protective order. They asserted Fenceroy's discovery request sought privileged information. They claimed the 2013 investigation was solely for the purpose of preparing a defense to plaintiff's ICRC charge, and all communications between Gelita and Horvatich, as well as any notes taken by Horvatich, were done in anticipation of litigation. They further argued the investigation was not "at issue" in their affirmative defense because it occurred after Fenceroy left the company and their actions could not have remedied any terms or conditions of his employment.
In resisting the protective order, Fenceroy asserted the defendants' impliedly waived any privileges. He claimed the proceedings before the ICRC revealed Gelita intended to rely on its postcomplaint investigation by Horvatich to help prove its affirmative defense. More specifically, he argued the investigation conducted after he left his employment was relevant to the lawsuit because it could be used in two ways. First, the investigation could be used to show its reasonableness in preventing *241harassing workplace behavior. Second, it could help establish that Fenceroy should have taken advantage of its response by making his complaint before he left his employment.
Prior to the hearing on the motion for a protective order, defendants filed a motion for summary judgment. This motion claimed defendants were entitled to judgment as a matter of law based on their Faragher - Ellerth defense. Within its discussion of this defense, specifically within a subsection titled "Gelita Exercised Reasonable Care to Prevent and Correct Promptly Any Harassing Behavior," defendants asserted that "[e]ven though Plaintiff was no longer with Gelita at the time of his Complaint, in response to his charge, the Company investigated his allegations, discharged one employee, and disciplined three others."
The district court denied the protective order, finding the defendants waived attorney-client privilege with respect to the 2013 investigation. It concluded Horvatich's investigation was a key piece of evidence in litigating the affirmative defense and Fenceroy "must be permitted to probe the substance of [the investigation] to determine its sufficiency." The court further held defendants waived work-product protection by placing the 2013 investigation at issue. Defendants filed for, and we granted, interlocutory review.
On review, defendants continue to maintain their Faragher - Ellerth defense is "based upon Fenceroy's unreasonable failure to take advantage of preventative and corrective opportunities" during his employment. Defendants further allege the investigation cannot be "at issue" with respect to the affirmative defense because the evidence is "not necessary" to prevail in their Faragher - Ellerth defense. Fenceroy argues on review that defendants' position is contrary to their actions before the district court. To illustrate, Fenceroy points to defendants' summary judgment motion, which referenced the investigation as evidence of Gelita's reasonable corrective actions when faced with a harassment complaint.
II. Standard of Review.
We review district court rulings on discovery matters for abuse of discretion. Jones v. Univ. of Iowa ,
III. Analysis.
A. Implied At-Issue Waiver of Attorney-Client Privilege.
1. The Faragher-Ellerth affirmative defense . Our law has long recognized that employers have a duty to take reasonable measures to investigate and eliminate workplace discrimination. At the same time, growing attention has focused on workplace discrimination committed by supervisors and managers, largely due to their authority over subordinate employees bestowed on them by the employer. See Faragher v. City of Boca Raton ,
The two-part defense requires employers to show reasonable care was exercised to "prevent and correct promptly any ... harassing behavior" and to further show the claimant employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer." Id. This remedial action defense was set out in two landmark decisions by the United States Supreme Court in 1998, and is commonly known as the Faragher - Ellerth defense. See id. ; Ellerth , 524 U.S. at 765, 118 S.Ct. at 2270. We adopted the defense in Farmland Foods, Inc. v. Dubuque Human Rights Commission ,
In adopting the vicarious liability standard established in Faragher and Ellerth , we recently clarified that vicarious liability does not replace the direct negligence theory of employer liability, but rather supplements the theory with an additional agency-based standard. Haskenhoff v. Homeland Energy Sols., LLC ,
2. Waiver of attorney-client privilege through the Faragher-Ellerth affirmative defense. In Iowa, affirmative defenses are raised in responsive pleadings in a lawsuit. The evidence to support a defense is then presented at trial or summary adjudication. While part of the focus of the Faragher - Ellerth affirmative defense is on the reasonableness of the plaintiff's conduct in utilizing complaint procedures to avoid harm, equal focus is on the conduct of the employer in preventing and responding to incidents of harassment. This evidence can include the actions of the employer in establishing and maintaining antidiscrimination policies and complaint procedures, past conduct by the employer in responding to complaints, and evidence of employer conduct in responding to the specific allegations articulated by the plaintiff in the pending legal proceeding. As a result, an employer's investigation into a harassment complaint that subsequently results in a lawsuit can become the centerpiece of the affirmative defense. Moreover, those who assist the employer in the investigation can become important supporting witnesses. Thus, the issue we confront here surfaces when, as in this case, an employer uses an attorney to conduct an investigation into a complaint, and the investigation gathered relevant evidence sought to be used by the employer to support the Faragher - Ellerth affirmative defense in a subsequent lawsuit.
Our law recognizes that a "confidential communication between an attorney and the attorney's client is absolutely privileged from disclosure against the will *243of the client." Shook v. City of Davenport ,
We have confronted the clash of these two doctrines in prior cases, but never in regard to the Faragher - Ellerth defense. Courts in other jurisdictions, however, have held that when a defendant asserts the Faragher - Ellerth defense and then relies on an internal investigation to support the defense, it waives attorney-client privilege over the investigation. See, e.g. , Angelone v. Xerox Corp. , No. 09-CV-6019,
This line of cases stems from the seminal case of Harding v. Dana Transport, Inc. ,
*244to offer the fact that [their attorney] did conduct an investigation."
Discovery of the content of the investigation is relevant to much more than the state of mind of Dana. Rather, the investigation, itself, provides a defense to liability. As previously reviewed, Title VII permits employer liability which employers may refute by proving that they reasonably and sufficiently investigated the allegations of discrimination. Dana has attempted to utilize the results of Mr. Bowe's investigation both as a defense to liability under Title VII and as an aspect of its preparation for the sexual discrimination trial itself. By asking Mr. Bowe to serve multiple duties, the defendants have fused the roles of internal investigator and legal advisor. Consequently, Dana cannot now argue that its own process is shielded from discovery. Consistent with the doctrine of fairness, the plaintiffs must be permitted to probe the substance of Dana's alleged investigation to determine its sufficiency. Without having evidence of the actual content of the investigation, neither the plaintiffs nor the fact-finder at trial can discern its adequacy.
We agree that an employer who relies on a presuit investigation to support a Faragher - Ellerth affirmative defense waives attorney-client privilege when the investigation is conducted by an attorney. Normally, the process of an investigation into a complaint is at issue when the Faragher - Ellerth defense is asserted, "including what the employer knew of the employee's complaints and when." Musa-Muaremi v. Florists' Transworld Delivery, Inc. ,
The key element behind this authority is that the Faragher - Ellerth defense must not only be pled, but the employer must then rely on the attorney's investigation into plaintiff's discrimination allegations in proving the defense. When the reasonableness of the investigation into the allegations is relied upon as a defense, the contents of the investigation are placed into issue and become subject to disclosure.
3. Merits. Here, Gelita expressly relied on Horvatich's investigation to support its Faragher - Ellerth affirmative defense in its ICRC position statement. In the civil action, defendants raised the affirmative defense in their answer. When moving for a protective order, defendants argued the investigation could not be at issue, as Fenceroy had already left his position. Yet, in their motion for summary *245judgment, within a subsection entitled "Gelita Exercised Reasonable Care to Prevent and Correct Promptly Any Harassing Behavior," defendants argued that "[e]ven though Plaintiff was no longer with Gelita at the time of his Complaint, in response to his charge, the Company investigated his allegations, discharged one employee, and disciplined three others."
On appellate review, defendants continue to maintain they are not relying on the Horvatich investigation. They assert their affirmative defense is not related to the actions Gelita took in response to Fenceroy's complaint. Instead, defendants argue their defense is that Gelita maintained a workplace reporting procedure and training process to prevent and correct workplace harassment and that Fenceroy unreasonably failed to use the procedure to correct the alleged harassment before he left his employment.
Defendants primarily rely on Treat , to support their position. In Treat , three plaintiffs brought suit against their employer, Kelley, alleging sex discrimination in violation of Title VII.
The critical point in Treat was the existence of a trial court record to show the employer took a position that the Faragher - Ellerth defense would only be supported by evidence that it had antidiscrimination policies and reporting procedures in place at the time of the alleged discriminatory conduct and that the plaintiffs failed to take advantage of the procedures. The employer in Treat made it clear that it would not offer any evidence of its actions after the plaintiffs made their complaints.
Treat underscores that an employer does not impliedly waive an attorney-client privilege merely by using an attorney to investigate a complaint of workplace discrimination but, rather, by subsequently relying on the investigation to prove a Faragher - Ellerth defense asserted in a lawsuit. In this case, as in Harding , Gelita clearly relied on the investigation as proof of its affirmative defense during the administrative proceeding. Additionally, unlike in Treat , defendants relied on the investigation as proof of their affirmative defense during summary judgment proceedings.
Importantly, contrary to defendants' assertion on appeal, corrective measures taken by an employer in response to a complaint by an employee made after the employee has left the employment may be relevant to the reasonableness of care exercised by an employer to prove a Faragher - Ellerth defense. The Faragher - Ellerth defense was crafted in order to provide a complete defense to vicarious liability for employers who have demonstrated a commitment to abiding by antidiscrimination statutes. Through this defense, employers *246have an opportunity to demonstrate they are the type of employer that takes discrimination seriously and affirmatively works to prevent and correct it. Generally, if an employee fails to notify the employer of wrongdoing, courts have found that such failure, coupled with adequate preventative policies, is sufficient to prevail in the defense. Faragher , 524 U.S. at 807-08, 118 S.Ct. at 2293.
However, defendants conflate what is necessary to prevail in the defense in certain instances with what is relevant to the defense. All evidence relating to an employer's steps to prevent and correct harassment goes toward proving that they are the type of company that deserves a complete defense to vicarious liability. Parties can, and frequently do, bolster their positions with evidence beyond what is minimally necessary to succeed. The rules of discovery reach all offered evidence, not merely the minimum evidence necessary to prevail on a claim or affirmative defense. Here, defendants bolstered their affirmative defense beyond what was necessary, in an effort to conclusively prove they are the type of company that deserves a complete defense to liability. This choice was entirely their own. If defendants wish to use Horvatich's investigation as evidence of their commitment to abiding by antidiscrimination statutes, plaintiff may not be kept from disputing that evidence, especially at the summary judgment stage.
The critical question presented when discovery of an attorney investigation is sought in a lawsuit based on workplace discrimination is whether the employer intends to rely on the investigation as evidence to help prove the Faragher - Ellerth defense. When confronted with a discovery request, the employer controls the outcome of the waiver issue. The employer may decide to simply refrain from referencing the investigation in the civil action, in which case it will remain confidential. Or, the employer may choose to explicitly cabin its defense to the period of plaintiff's employment, in which case any reference to the investigation will be met with a relevance objection rather than a notice for deposition. Of course, the employer may also choose to offer the investigation as evidence of its proper corrective actions and waive any privilege over the investigation. The employer's decision must be clear because it will become the basis for the court's ruling.
Defendants plainly relied on Horvatich's investigation to support their affirmative defense in their motion for summary judgment. The district court, therefore, did not abuse its discretion in finding defendants waived attorney-client privilege over the investigation.
Our law permits a party who has waived attorney-client privilege to retract the waiver and reinstate the privilege. See Squealer Feeds ,
B. Work Product. Although the district court did not abuse its discretion with respect to waiver of attorney-client privilege, *247the issue remains whether plaintiff may discover Horvatich's work product from the 2013 investigation.
Parties may only discover "documents and tangible things" that were prepared by another party "in anticipation of litigation or for trial," if the requesting party demonstrates a "substantial need of the materials" and is "unable without undue hardship to obtain the substantial equivalent of the materials by other means." Iowa R. Civ. P. 1.503(3). However, courts must protect against disclosing "mental impressions, conclusions, opinions, or legal theories of an attorney."
Courts in other jurisdictions that have adopted the implied at-issue waiver standard within the Faragher - Ellerth context have also concluded a party waives work-product protection over investigation documents if the party relies on the investigation to support its affirmative defense. See, e.g. , Koss v. Palmer Water Dep't ,
We agree that when a party places an investigation at issue by relying upon it in support of the Faragher - Ellerth affirmative defense, any nonopinion work-product protection over that investigation is necessarily waived. Like attorney-client privilege, a party may not use work-product protection to shield documents from discovery while at the same time relying upon those same documents to support their claim. This is especially true in the context of the Faragher - Ellerth affirmative defense. An employer may not point to the thoroughness of an investigation to demonstrate compliance with the ICRA while at the same time shield the plaintiff from disputing the investigation's thoroughness.
Of course, an attorney-investigator's mental impressions, conclusions, opinions, and legal theories remain sheltered from discovery. Although an employer opens the door to discovery of the facts and process of its investigation by relying *248upon it in support of its affirmative defense, opinion work product is not germane to the objective reasonableness of an employer's investigation. See Reitz ,
C. Third-Party Waiver. Plaintiff argues that even if defendants did not waive attorney-client privilege over the contents of the investigation by raising the affirmative defense, they nevertheless waived privilege over the desired information by conducting employee interviews in the presence of a third party.
1. Error preservation. As an initial matter, the defendants contest whether this issue is preserved for appeal. Generally, an issue is not preserved unless "a party raises an issue and the district court rules on it." State ex rel. Miller v. Vertrue, Inc. ,
By conducting the investigation in the presence of a third party who was not representing Gelita but was actually an adversary to Gelita's interests, Gelita waived and is estopped from claiming attorney-client and work product privileges apply to her communications with them. Ms. Horvatich's thought processes and communications were revealed to the third party by her actions, questions and deeds at the time of her investigation on behalf of Gelita. To the extent there was a privilege, Gelita waived it by the presence of the union.
Plaintiff plainly raised the issue at the district court level. However, the district court did not rule on the third-party waiver issue, as it concluded the affirmative defense waived attorney-client privilege and work-product protections. Nevertheless, "a successful party need not cross-appeal to preserve error on a ground urged but ignored or rejected by the district court." Venard v. Winter ,
2. Merits . Communications that could be cloaked by privilege may nevertheless be discoverable if made in the presence of, or disclosed to, a third party. See State v. Romeo ,
Plaintiff asks that we go well beyond the parameters of third-party waiver and conclude a third party's presence during investigatory interviews waives privilege over the whole of the investigation. This we decline to do. Horvatich conducted several employee interviews as part of her investigation into the merits of plaintiff's administrative charge. In each interview, she was joined by Tolsma and union representative Hoswald. There is no evidence in *249the record to demonstrate Hoswald was privy to any internal decision-making or communications about the direction or disposition of the investigation. As such, the only communications that could potentially be discoverable are statements made in Hoswald's presence during employee interviews.
During discovery, defendants produced all of the investigation's witness statements. As well, plaintiff had the opportunity to depose employees who were interviewed and inquire into the nature and content of their interviews. Accordingly, we need not reach the question of whether the presence of a union representative during an internal investigation waives attorney-client privilege, as defendants have not claimed privilege over any communications made in the union representative's presence.
D. Subject Matter Waiver. Plaintiff further argues, for the first time on appeal, that even if defendants did not waive attorney-client privilege, employee depositions revealed "Ms. Horvatich's thought process and communications" during the investigation, and as such, the employee testimony amounts to a subject matter waiver of the contents of the investigation. Because plaintiff did not raise this issue to the district court, it has not been preserved for our review.
IV. Conclusion.
We affirm the district court order denying defendants' protective order. The case is remanded to the district court for further proceedings consistent with this opinion.
DISTRICT COURT ORDER AFFIRMED AND CASE REMANDED.
All justices concur except Waterman, Mansfield, and Zager, JJ., who dissent.
Dissenting Opinion
I respectfully dissent and would hold the district court abused its discretion by compelling the deposition of Gelita's trial counsel Ruth Horvatich and production of her notes prepared in anticipation of litigation.
First, Gelita never waived its attorney-client privilege or work-product protection by pleading or arguing the Faragher - Ellerth defense in district court. That defense was based solely on Mr. Fenceroy's failure to use Gelita's reporting procedures during his employment, before he retired and filed his discrimination complaint. The majority, contrary to precedent, finds that Gelita impliedly waived the confidentiality of its lawyer's private notes and client communications by including this sentence in its lengthy brief supporting its motion for summary judgment: "Even though Plaintiff was no longer with Gelita at the time of his Complaint, in response to his charge, the Company investigated his allegations, discharged one employee, and disciplined three others." I disagree that sentence constitutes an implied waiver. Gelita never relied on confidential attorney-client communications in asserting its defenses. Gelita was not using the attorney-client privilege as both a sword and shield and never blocked proper discovery into a matter it placed at issue.
Second, even if it was a waiver, Gelita clearly has retracted it. The majority questions that a retraction has occurred but allows Gelita the opportunity to retract the waiver on remand. I think this is unnecessary based on a fair reading of the record and Gelita's appellate briefs.
Third, the majority also misses the opportunity to adopt the showing required under Shelton v. American Motors Corp. ,
I. Gelita Never Impliedly Waived Its Attorney-Client Privilege or Work-Product Protection.
The majority makes it too easy to find an implied waiver of the attorney-client privilege and work-product doctrine. There was no such waiver here. Gelita never listed attorney Horvatich as a witness. See Squealer Feeds v. Pickering ,
The majority primarily relies on Harding v. Dana Transport, Inc. ,
In Harding , two employees filed an administrative complaint alleging sexual discrimination; one employee filed her complaint while still employed, unlike Fenceroy.
Dana is not submitting any of the specifics of [the attorney's] investigation as a basis of defense in this matter. Dana merely intends to offer the fact that [the attorney] did conduct an investigation as part of his representation of Dana in response to allegations filed with the Division on Civil Rights. Whether this investigation, coupled with other actions taken on behalf of Dana in the context of the facts in this case, constitutes evidence of reasonable conduct on the part of Dana is a jury question , but does not compel disclosure of the specifics of [the attorney's] investigation.
By contrast, in Treat , three employees filed an administrative complaint after their employment ended, as did Fenceroy.
[I]t has been fleshed out during the discovery process that Kelley's defense is not that it acted reasonably upon learning of the Plaintiffs' complaints, but rather that the Plaintiffs did not take advantage of Kelley's policies in reporting harassment and discrimination. In other words, because the Plaintiffs allegedly did not report their complaints during their employment, there is no internal investigation of any complaints to rely upon; the only investigation (conducted by outside counsel) was for the purpose of preparing for litigation, once the EEOC charges were filed.... Thus, because Kelley is not actually relying on the adequacy of any investigation to support an affirmative defense, Kelley has not placed outside counsel's investigation at issue.
Id. at *13 (emphasis added). That is what we have here.
Other courts have likewise rejected implied waiver claims under the Faragher - Ellerth defense when, as here, the employer confirms it is not relying on the lawyer's investigation but rather the employee's failure to use the employer's complaint procedures. See, e.g. , Robinson v. Vineyard Vines, LLC , 15 Civ. 4972 (VB)(JCM),
As the great weight of authority shows, the majority errs by concluding Gelita waived its attorney-client privilege and work-product protection merely by pleading the Faragher - Ellerth defense and referring to its postemployment investigation in the agency proceedings and summary judgment filings. In Exotica Botanicals, Inc. v. Terra International, Inc. , we held that a lawyer's general testimony regarding his investigation in prior litigation and related communications with an adverse party did not waive work-product protection.
It was [attorney] Kalafut's duty to communicate with Du Pont regarding the Benlate claims and to evaluate Terra's liability in the matter. But to say that Kalafut waived his work product privilege concerning information that might potentially absolve Terra of liability, simply by discussing the general nature of that information with Du Pont, would mean that an attorney could never discuss the positive aspects of his or her case with opposing counsel for fear that such discussion would amount to a waiver of the work product privilege as to all documents supporting that position. If this were the case, settlement negotiations and communication between the parties in general would break down. Such a result would be inconsistent with a commonsense application of the work product doctrine and certainly inconsistent with the goal of resolving cases in a timely manner.
The majority's decision today conflicts with Exotica Botanicals . Iowa lawyers should not have to worry that they will waive privilege or work-product protections simply by general references to their investigation or their client's position.
II. Gelita Already Retracted Any Alleged Waiver.
The majority correctly acknowledges that a party who waived the attorney-client privilege by asserting a particular defense can retract the waiver. See Squealer Feeds ,
In its opening brief on appeal, Gelita confirmed that it was not relying on its attorney's investigation to support a Faragher - Ellerth defense:
In this case, the Faragher - Ellerth defense is based on Fenceroy's unreasonable failure to take advantage of preventative and corrective opportunities available during his employment. Defendants are not relying upon any investigation conducted by defense counsel after Fenceroy filed his discrimination charge. Those complaints were not made by Fenceroy during his employment and therefore, the adequacy of that investigation and remedial action undertaken by the Company are not "at issue" nor are they part of Gelita's Faragher - Ellerth affirmative defense.
Appellants' Final Br. 14. Gelita made the same point in its reply brief:
Defendants' Faragher - Ellerth defense is not that it conducted a reasonable investigation after receiving the ICRC charge, but that Plaintiff failed to report the alleged conduct during his employment and thus failed to take advantage of the Company's policies on reporting harassment and discrimination. Any investigation and remedial response undertaken after Complainant left his employment and filed his ICRC charge is simply not necessary to Defendant's Faragher - Ellerth defense and, as such, is not at issue.
Appellants' Final Reply Br. 2-3. Because Gelita has already withdrawn any alleged implied waiver, the district court on remand should grant Gelita's motion for protective order. The majority seemingly agrees in principle, but wants Gelita to put its withdrawal on the record when this case returns to district court. I do not think that is needed, although in the long run it should not make a difference.
III. Fenceroy Failed to Show He Was Entitled to Depose Gelita's Trial Counsel.
The majority opens the door to compelling the depositions of opposing counsel in pending lawsuits. Compelled depositions of opposing counsel have long been disfavored. See Hickman v. Taylor ,
Two years after Miller , the United States Court of Appeals for the Eighth Circuit in Shelton addressed the circumstances under which the district court may compel the deposition of the opposing party's trial counsel.
(1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and nonprivileged [or the privilege has been waived]; and (3) the information is crucial to the preparation of the case.
*254
The Shelton rule has been widely adopted by state and federal courts as the standard for determining whether a litigant may compel the deposition of opposing trial counsel.
The parties briefed and argued Shelton here. Yet the majority, without expressly accepting or rejecting Shelton , declines to address the showing required to depose a party-opponent's trial counsel during a lawsuit. The majority assumes Gelita will reconfirm its retraction of any alleged reliance on Horvatich's investigation when the case returns to district court and that the district court will then preclude her deposition. Presumably so. The problem is that the majority today is affirming the district court's order compelling Horvatich's deposition based on the existing district court record. The majority thereby blesses the overly aggressive practice of compelling the deposition of opposing trial counsel without a proper showing of necessity.
Fenceroy cannot meet any of the three Shelton requirements. First, Gelita already provided Fenceroy with the statements taken from the witnesses Horvatich interviewed, and Fenceroy deposed those witnesses. Fenceroy could explore why Gelita terminated one employee and disciplined others by deposing the decision-maker, Jeff Tolsma, Gelita's Vice President of Business Support. Fenceroy has not shown why those sources of information are inadequate, much less demonstrated that a deposition of Horvatich is his only means to obtain discovery on Gelita's investigation and resulting actions. A mere allegation of need is insufficient. Cf. Iowa R. Civ. P. 1.503(3) ; Squealer Feeds ,
I fear that the majority's failure to clarify the showing required to depose opposing trial counsel could lead to increasingly aggressive litigation tactics that undermine the professionalism and civility of our trial bar and needlessly increase the costs and burdens of pretrial discovery.
Going forward, I also fear today's decision will have a chilling effect on the routine practice of retaining outside counsel to investigate discrimination claims. If the employer's lawyer can be deposed by plaintiff merely because the employer pleads a Faragher - Ellerth defense, will two different law firms have to be retained-one to investigate and the other to try the case? Will employers limit what they tell their lawyer who may be compelled to testify by the litigation adversary? Or will some employers be reluctant *255to retain a lawyer who might be compelled to provide adverse testimony? Will such employers lose the benefit of sound legal advice that would otherwise help them improve compliance with employment laws?
Our legal system venerates the attorney-client privilege for vitally important reasons:
The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.
Upjohn Co. v. United States ,
For these reasons, I respectfully dissent.
Mansfield and Zager, JJ., join this dissent.
See Angelone v. Xerox Corp. , No. 09-CV-6019,