McGowan v. JPMorgan Chase Bank, N .A.

Background

Emma McGowan brought claims under New York State and New York City laws alleging pay, pregnancy, sex, and disability discrimination, along with retaliation, against JPMorgan Chase Bank, N.A. McGowan moved to compel the bank to produce documents and deposition testimony that it withheld based on the attorney-client privilege and the work-product doctrine. The attorney-client privilege generally protects confidential communications made to obtain or provide legal advice. The work-product doctrine generally protects materials prepared because of anticipated litigation.

McGowan’s complaint about discrimination began an investigation at the bank. The opinion distinguishes between an initial investigation conducted before February 13, 2018, and a later investigation. On February 13, McGowan’s lawyer notified the bank’s in-house counsel that she represented McGowan. The bank then assigned in-house counsel Gershom R. Smith to direct an investigation for the purpose of providing legal advice and responding to the lawyer’s communication. Smith directed Ann Cabrera-Vargas and Gianna DiMaulo to gather information from bank employees.

Investigation Before February 13, 2018

The bank conceded that the investigation conducted by Sharita Dove before February 13 was not protected by either privilege. The court also noted that the bank had previously asserted a blanket privilege over its investigation and had not identified Dove in its discovery responses as someone likely to have relevant information.

Because McGowan learned of the unprotected investigation and Dove’s role only through the bank’s opposition to the motion, the court held that McGowan was entitled to question Dove about that investigation. McGowan was also entitled to reopen the depositions of Anthony Masi and Gianna DiMaulo regarding the initial investigation. The court noted that information and documents existing independently of the investigation were not protected if relevant, although the cited deposition portions did not clearly establish that the witnesses had been improperly prevented from discussing such information.

Investigation After February 13, 2018

The court rejected McGowan’s argument that the bank’s investigation could not be divided into pre-February 13 and post-February 13 periods. An employer’s investigation can change from an internal investigation into a claim to an investigation conducted to help prepare a legal defense.

The court found that the circumstances supported the bank’s assertion that the later investigation was conducted to allow Smith to provide legal advice. Those circumstances included the communication from McGowan’s lawyer, the fact that Dove no longer directed the investigation after Smith became involved, the involvement of new personnel, and Smith’s sworn statement about the investigation’s purpose. The court therefore held that the communications gathered through the later investigation were protected by the attorney-client privilege. Because attorney-client privilege applied, the court did not decide whether the work-product doctrine also protected the materials.

Claim of Implied Waiver

McGowan argued that the bank had waived its privilege by denying that it failed to conduct a reasonable investigation and by asserting in its answer that it acted in good faith and took reasonable steps to prevent and correct discrimination and retaliation. An implied waiver can occur when fairness requires disclosure because a party has placed protected communications directly at issue.

The court rejected waiver based on the bank’s denial of McGowan’s allegation. A denial alone did not place the substance of the investigation at issue, and McGowan had not shown why the investigation was relevant to a claim or defense. The court also held that merely using the term “good faith” in the answer did not by itself show reliance on protected communications. The court observed that the defense described in the answer was generally associated with a defense to harassment claims, that McGowan’s complaint did not assert harassment, and that the defense was unavailable under the New York law governing this case.

The court nevertheless required the bank to make an election because it had continued to include the defense and had not disclaimed reliance on it. Within 14 days, the bank had to file a letter stating whether it intended to offer evidence about the nature of its investigation as part of its defense. If it intended to do so, McGowan would be entitled to the withheld documents and discovery about the investigation. If it did not file such a letter, the bank would be barred from offering evidence about the investigation’s nature.

Disposition

The court granted in part and denied in part McGowan’s motion to compel, to the extent explained in the opinion. It ordered JPMorgan Chase Bank to file the required letter within 14 days.