An employee complains about discrimination or harassment, and you conduct an investigation. The employee is still unhappy and sues. Can you be forced to turn over all your notes from the investigation as part of the court case?
The answer is not always clear – and it’s an important issue you should be aware of.
As a general rule, any relevant documents that are created in the normal course of business are fair game to be turned over in a lawsuit. That includes documents that are created as part of a routine investigation by human resources personnel.
On the other hand, documents that are created “in anticipation of litigation” might not have to be turned over. Sometimes it’s difficult to say whether a particular document qualifies under this exception – particularly if it only gradually became clear that a routine employee complaint was likely to end in a lawsuit.
And even if it’s obvious that a document was created in expectation of a court case, it might still have to be turned over in certain circumstances. For instance, if a company’s defense to a harassment claim is that it conducted a thorough and reasonable investigation, then it might have to turn over all documents related to the investigation, so a court can decide whether that defense is valid.
So what does this mean for you? For one thing, since it’s often unclear whether HR notes will have to be turned over, you should probably always assume that they will be. It’s important that written notes do not contain any stray comments, denigrating opinions, unproven assumptions, or anything else that you wouldn’t want to be read by a jury.
Also, when an employee makes a complaint, it can be a good idea to open two completely separate files. One is for the factual investigation conducted by HR; the other is for conversations with your attorney about the legal consequences of those factual findings. While this isn’t foolproof, having two separate files can make it easier to argue that the items in the second file shouldn’t have to be turned over in a lawsuit.