Malone v. Town of Clarkstown
- Paul Davison
- 7:19-cv-05503
- U.S. District Court · Southern District of New York
- 2
In Malone v. Town of Clarkstown, Judge Davison denied the Town’s request to protect two investigation documents from discovery.
The Town of Clarkstown and Victoria Malone were affected: the Town’s request to keep two investigation-related documents protected was denied, and the documents were subject to the court’s finding that privilege had been waived.
What happened
In Malone v. Town of Clarkstown, the Town asked the court to protect two documents listed on its privilege log: a draft report and attorney notes. Victoria Malone opposed the request, and the court reviewed the documents privately.
The court explained that the Town’s defenses relied on the Faragher/Ellerth defense, which makes the reasonableness of the employer’s investigation relevant. By relying on that defense, the Town waived any privilege covering documents about the investigation. Both documents concerned the Town’s investigation of Malone’s discrimination complaints, and the final version of the draft report had already been disclosed.
Judge Davison denied the Town’s motion and directed the Clerk to terminate the related docket entry. The order did not decide the underlying discrimination claims.
The detailed version
- Malone v. Town of Clarkstown · No. 7:19-cv-05503
- Paul Davison
- Dec. 23, 2020
Background
By a letter-motion dated November 25, 2020, the Town of Clarkstown sought a protective order for two documents identified as Documents #55 and #61 on its privilege log. Document #55 was a draft report, and Document #61 consisted of attorney notes. The Town provided the documents to the court for private review. Victoria Malone opposed the motion.
Court’s analysis
The Town’s Twelfth, Thirteenth, and Fourteenth affirmative defenses invoked the Faragher/Ellerth defense. That defense can protect an employer from liability if the employer shows that it reasonably tried to prevent and correct harassment and that the employee unreasonably failed to use the preventive or corrective opportunities provided.
The court explained that this defense places the reasonableness of the employer’s investigation at issue. An employer that relies on the defense therefore waives attorney-client or other applicable privilege over documents concerning that investigation. The court found that both disputed documents plainly related to the Town’s investigation of Malone’s discrimination complaints. The court also noted that Document #55 was a draft of a final document that the Town had voluntarily disclosed to Malone in discovery. Although the documents were initially privileged, the court found that the Town waived the privilege.
Disposition
Judge Paul E. Davison denied the Town’s motion for a protective order. The Clerk was directed to terminate Docket 137. This order addressed the privilege and discovery dispute; the opinion does not state a ruling on the underlying discrimination claims.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.