Lockett v. City of Mount Vernon

Background

Shanitra Lockett, a former Assistant Corporation Counsel for the City of Mount Vernon, challenged the termination of her employment in a lawsuit alleging state and federal discrimination claims based on sex and pregnancy, as well as retaliation. The City had hired outside counsel in 2021 to investigate Lockett’s alleged improper involvement in an executive meeting and the alleged involvement of another employee. The investigation included employee interviews and an investigatory report.

The City terminated Lockett’s employment on July 6, 2022, after she returned from a 30-day unpaid suspension. The City acknowledged that it relied at least in part on the investigation in making the termination decision. It had produced an eight-page document called the “Summary of Findings,” but withheld a separate November 11, 2021 “Memo to File” and attached interview notes.

Motion and arguments

Lockett asked the court to compel production of the withheld materials. She argued that the report was not protected by attorney-client privilege because it did not provide or request legal advice, was not prepared in anticipation of litigation, and had been placed at issue by the City’s reliance on its findings in defending the lawsuit.

The City argued that the Memo to File was protected by attorney-client privilege because it was prepared by outside counsel and was not provided to the City, so it could not have been relied on in the termination decision. The City also argued that the Memo and interview notes were protected work product because they were prepared after the City learned that Lockett was represented by counsel.

Court’s analysis

After reviewing the documents privately, the court found that the outside counsel’s investigation and report contained communications intended to help counsel provide legal advice. The employee interviews concerned matters within the employees’ duties, and the interview notes stated that the employees received a warning that the interviews were being conducted so the corporation could obtain legal advice. The court therefore recognized attorney-client protection for the materials in the ordinary course.

The court nevertheless found that the City’s disclosure and use of the Summary of Findings changed the result. The first seven pages of the withheld Memo to File were nearly identical to the material already produced. The court concluded that the City’s disclosure of the substance of the employees’ statements waived privilege for the factual portions of the related interview notes. The court reasoned that relying on the produced summary necessarily implicated the underlying interviews on which the summary was based.

The court did not extend that waiver to the lawyers’ mental impressions or analysis. Portions of the interview notes discussing investigative next steps and similar attorney analysis could remain protected and could be redacted.

Ruling

The court granted Lockett’s request to compel production. The City was ordered to produce the Memo to File and its attachments, but it could redact portions of the interview notes referring to attorney mental impressions or analysis. The order resolved the discovery dispute and did not decide the merits of Lockett’s discrimination or retaliation claims.