New Jersey Appellate Division Sheds Light on the Scope of Privilege in Workplace Investigations
August 10, 2026
In C.S. v. Brick Recycling Co., the New Jersey Appellate Division vacated a trial court decision requiring the disclosure of documents relating to an attorney-led workplace investigation into sexual harassment. In doing so, the court provided important guidance on the discoverability of documents relating to such investigations.
Background
The plaintiff, a former employee of the employer, made an internal complaint of sexual harassment. The employer retained outside counsel to investigate the complaint. The law firm prepared a lengthy investigation report summarizing interviews with the complainant, witnesses, and the accused, analyzing information and documentation, and evaluating credibility. The report substantiated the plaintiff’s harassment claim.
The employee later filed suit alleging sexual harassment and constructive discharge under the New Jersey Law Against Discrimination. In response, the employer raised several affirmative defenses, including that it exercised reasonable care in responding to the internal complaint. During discovery, the defendant employer produced nearly 600 documents, including the final investigation report. However, the employer withheld various documents on the basis of privilege, including a draft of the investigation report, attorney notes made during the investigation process and the retainer agreement between the law firm and the employer. The trial court held that none of the withheld documents were privileged and ordered that the documents be turned over to the employee. The employer obtained leave to appeal.
New Jersey Appellate Division Decision
The Appellate Division vacated the trial court’s decision regarding privilege and remanded to the trial court with further instruction to review. The Appellate Division opinion offers several key takeaways regarding the privilege protections that may apply to workplace investigations:
Timing is Not Determinative
The Appellate Division explained that the trial court was mistaken in finding that privilege could not be invoked since the investigation had begun several weeks before the employee filed suit. Instead, the Appellate Division found that there was a “sufficiently close temporal nexus between the claims, the undertaking of the investigation and the filing of the complaint.”
“Tenuously Related”
In a 1997 decision, the New Jersey Supreme Court explained that certain documents created or identified during an investigation may be so “tenuously related” to an employer’s affirmative defense that they need not be produced, but it did not define what exactly is meant by “tenuously related.” Here, the Appellate Division provided additional guidance on when a document is sufficiently related to the defense to warrant disclosure. According to the court, a document may be related enough to require production if it could: (1) show the reasonableness or thoroughness of the attorney-led investigation; or (2) impeach the affirmative defense, such as by showing that the employer undermined the independence of the investigation.
Draft Reports
The Appellate Division likened draft investigation reports to draft reports by expert witnesses, which are generally non-discoverable. In doing so, the Appellate Division questioned whether draft investigation reports should be disclosed at all and directed the trial court to reconsider its decision on the issue.
Wholesale Inclusions or Exclusions Disfavored
The Appellate Division rejected the employer’s request to entirely exclude attorney notes from production. Instead, the Appellate Division explained that the trial court must carefully analyze documents line-by-line and, where appropriate, redact privileged material.
Important Considerations for Employers
The decision underscores several practical considerations for employers:
- Employers should strongly consider hiring outside counsel to perform workplace investigations to preserve any possible protection afforded to the investigation.
- While timing is not dispositive, employers should be thoughtful about when they choose to retain an outside law firm for a workplace investigation.
- Employers should clearly identify and maintain draft investigation reports as drafts to avoid possible production.
If you have any questions or would like additional information, please contact Jason Kaufman, Mallory Campbell, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.
