Last week, in Buckley v. Series 1 of Oxford Insurance Insurance Company, the North Carolina Supreme Court issued a unanimous, per curiam decision affirming the trial court’s determination that certain documents related to an employer’s investigation of sexual harassment were not protected by attorney-client privilege. Patterson Harkavy attorneys Paul Smith and Narendra Ghosh, along with attorney Laura Wetsch, submitted an amicus brief to the Court on behalf of the North Carolina Advocates for Justice.
The Supreme Court’s opinion largely adopted the reasoning of Patterson Harkavy’s brief. The Court reiterated that when a business’s communications with its counsel contain “intertwined business and legal advice,” courts are to consider whether “the primary purpose of the communication was to seek or provide legal advice” when determining if the communication is privileged. It held that “[i]n today’s business world, investigations of alleged violations of company policy, including policies prohibiting sexual harassment or discrimination, are ordinary business activities and, accordingly, the communications made in such investigations are not necessarily made in the course of giving or seeking legal advice for a proper purpose.” The Supreme Court then affirmed the trial court’s order mandating the disclosure of certain documents.