Abromavage v. Deutsche Bank Securities Inc.

Background

Neil Abromavage alleged that he witnessed racist behavior by another Deutsche Bank Securities Inc. managing director, Jason Gurandiano, during an internal workplace-discrimination investigation. After Gurandiano was terminated, Abromavage alleged that his supervisors, Jeffrey Bunzel and Mark Hantho, retaliated against him. Abromavage said he complained to DBSI's human-resources department in August 2015, after which DBSI investigated his retaliation complaints.

The investigation was conducted by several people and resulted in a January 15, 2016 report drafted by DBSI in-house attorney Christina Berti. The report concluded that Bunzel and Hantho had not retaliated against Abromavage in violation of DBSI policies. Abromavage later alleged that DBSI continued retaliating against him, including by denying him a bonus and terminating his employment. He filed this lawsuit asserting retaliation claims under federal, state, and local law and seeking, among other relief, punitive damages under Title VII of the Civil Rights Act of 1964.

The Dispute Over the Report

DBSI asserted an affirmative defense known as the Kolstad defense. That defense can protect an employer from punitive damages if the employer had an antidiscrimination policy and made good-faith efforts to enforce it. DBSI's answer stated that it had maintained and complied with policies and procedures for preventing and detecting unlawful harassment, discrimination, and retaliation.

During discovery, DBSI produced interview notes prepared during the investigation and certain emails, but it withheld the report based on attorney-client privilege and work-product protection. Attorney-client privilege generally protects confidential communications between a client and attorney made for legal advice. Work-product protection generally protects materials prepared for litigation. Abromavage sought an order compelling production of the report.

Court's Analysis

The court did not decide whether DBSI had established all the elements of either protection. Instead, it held that DBSI would waive any applicable privileges or protections over the relevant portions of the report if it continued advancing the Kolstad defense.

The court explained that a party may implicitly waive privilege when it asserts a claim or defense that requires examining protected communications. A good-faith defense places the party's knowledge and state of mind at issue. The court concluded that DBSI's defense depended on whether it acted in good faith when it investigated Abromavage's complaints and concluded that no retaliation had occurred.

The court rejected DBSI's argument that waiver required an express assertion that it relied on legal advice. The investigation was conducted by in-house counsel, and the report contained DBSI's assessment of the evidence and the reasons for the no-retaliation conclusion. The court determined that these matters were relevant to testing whether DBSI's asserted good faith was genuine. Interview notes and depositions did not provide the report's assessment of the evidence or its reasoning, so they did not make production unnecessary.

Disposition

The court held that, if DBSI proceeded with the Kolstad defense, it would impliedly waive protections over report material that:

- recounts facts uncovered during the retaliation investigation; - assesses the legal merits of Abromavage's retaliation claims; - recounts or evaluates DBSI's anti-retaliation policies or procedures; - addresses whether the defendants complied with those policies or procedures; - discusses the reasons for the conclusion that no retaliation occurred; or - recommends remedial actions that DBSI did not take.

If DBSI believed the report contained other material that should remain protected, the court required it to submit the report for private judicial review with proposed redactions highlighted and explained. Alternatively, DBSI could withdraw its Eleventh Defense. The conclusion required DBSI, by December 16, 2019, to produce the full and unredacted report, submit it with proposed redactions for private court review, or withdraw the defense.