Notes Allowed As Evidence

An attorney's notes from an internal investigation into a claim of discrimination may become evidence that can be used against an employer in court. The California Court of Appeals recently ruled that attorney-client privilege isn't valid if the employer, in litigation, raises its internal investigation as a defense. However, at the same time, the court ruled that an employee's right to see his or her personnel file does not override the attorney-client privilege, says Jeffrey Wohl, employment law attorney in the San Francisco office of Orrick, Herrington & Sutcliffe. Wohl suggests companies use non-lawyer investigators, or, at the minimum, consider using a different lawyer to do the investigation than the lawyer who will represent the client in any subsequent litigation.

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