Plaintiff Doreen Marshall worked as a loan officer for JP Morgan Chase (“Chase”). She filed a sexual harassment complaint against a co-worker with Chase’s human resources department. She also maintained contemporaneous handwritten notes detailing the alleged harassment.
During her deposition,
In the trial court, the motion judge concluded that the summary of plaintiff’s notes was protected by the attorney-client privilege, but the judge nevertheless required production of the summary because “it would be fundamentally unfair for one side to have the only relatively complete summary of what happened…and the other side not.”
On appeal, the Appellate Division affirmed, but disagreed with the trial judge’s reasoning. The Appellate Division held that the summary was not protected by the attorney-client privilege because neither the original contemporaneous notes nor the summary were prepared at the request of counsel.
In a footnote, the Appellate Division noted that plaintiff failed to argue that she had prepared the notes or the summary to prepare for litigation, which could have brought both documents within the scope of the privilege. The court refused to consider this argument because plaintiff did not raise it.
Employers should be mindful that communications among employees, even about pending litigation or other confidential matters, usually are not privileged unless the communications include an attorney and are made for the purpose of obtaining or providing legal advice.