In Nelson v. NAV-RENO-GS, LLC,No. 12-CV-0165 (D. Nev. June 7, 2013), the defendant undertook an internal investigation when it learned of allegations of sexual harassment in its work place. The investigation was conducted by non-attorney HR personnel, in consultation with company counsel. In response to plaintiff’s subsequently filed action, the company asserted the Faragher/Ellerth affirmative defense: that the company had taken reasonable steps to prevent and correct harassment, and plaintiff had failed unreasonably to take advantage of the employer’s preventative or corrective measures. Plaintiff sought discovery of the notes taken by the HR personnel of interviews taken during the investigation, and the company asserted both attorney-client privilege and the work product protection. With respect to work product, the court held that asserting the affirmative defense put the investigation at issue, and any work product protection had been waived, particularly where, as here, there was no indication that the notes contained any mental opinions or impressions of counsel. With respect to the attorney-client privilege, the court held that the interviews were not privileged. The communications were not between attorney and client, and they do not reflect the advice of counsel, but merely recorded facts that the HR personnel learned during the interviews. The fact that the HR personnel conferred with company counsel about the investigation and directed the HR personnel to conduct the interviews “does not cloak these documents with the protection of the attorney-client privilege.”