Based on the pleadings, it appears that the parties agree on many of the issues. In fact, it appears that there are only two issues remaining for the Court to decide: (1) whether Gaston can testify at trial regarding her investigation and (2) whether the legal advice Gaston provided to Rauland-Borg following her investigation is protected by the attorney-client privilege. Each issue will be addressed in turn.
A. Gaston's Testimony
Under Title VII, an employer is not strictly liable for the sexual harassment of one worker by another. Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995). Indeed, the criterion for when an employer is liable for sexual harassment is negligence. Id. at 432. Specifically, the employer is liable if it knew or should have known about the harassment and failed to take appropriate remedial action.
McKenzie v. Illinois Dep't of Transp., 92 F.3d 473, 480 (7th Cir. 1996).
Here, based on the pleadings, it is clear that Rauland-Borg intends to defend against Johnson's sexual harassment claim by arguing that once Johnson informed it of the allegations it took reasonable appropriate action by authorizing an outside attorney to investigate the matter. In support of its position that it acted reasonably, Rauland-Borg wants to call the investigator/attorney -- Gaston.
At this stage of the proceeding, the Court concludes that Gaston can testify. See Brooms v. Regal Tube Co., 881 F.2d 412, 422 (7th Cir. 1989) ("Furthermore ... without [the investigator/attorney] the corporate defendants could offer little proof that their reaction to Brooms' allegations of improper conduct by her supervisor was reasonable and thus should relieve them of liability."). As the parties agree, however, Gaston may not testify as to her opinion as to whether Johnson was sexually harassed. Gaston may, however, testify as to the specifics of the investigation. The Court believes that Gaston can provide such testimony without invading the province of the jury.
B. The Attorney-Client Privilege
Next, the Court must decide whether the legal advice provided by Gaston to Rauland-Borg is protected by the attorney-client privilege. As discussed below, the Court concludes that it is not protected under the facts of this case.
Initially, the Court notes that both parties operate under the presumption that the advice provided by Gaston to Rauland-Borg is the type of communication that can qualify for protection under the attorney-client privilege.
Thus, the Court will not interfere with that presumption. The Court will presume that Rauland-Borg satisfied its burden of establishing that the legal advice qualifies for protection under the attorney-client privilege, assuming the privilege has not been waived.
The question now is whether Rauland-Borg "waived" the privilege. Johnson thinks it did because Rauland-Borg placed the investigation at issue, i.e., Rauland-Borg intends to argue that it is not liable because it acted reasonably by employing an outside attorney to investigate the matter.
The Court agrees with Johnson. Whether Rauland-Borg acted reasonably will depend on the advice it received from Gaston following her investigation. Since Rauland-Borg placed the reasonableness of its conduct following notification of Johnson's sexual harassment allegations at issue, it must reveal the legal advice it received. See Fultz v. Federal Sign, 1995 U.S. Dist. LEXIS 1982, No. 94 C 1931, WL 76874 *3 (N.D. Ill. Feb. 17, 1995) ("In view of the fact that counsel for the defense is not willing to stipulate that it will not use this investigation, the conversations adduced during the investigation, or the results of the investigation as part of its defense, the privilege objection" is overruled."); Alberts v. Wickes Lumber Co., 1995 U.S. Dist. LEXIS 883, *4, No. 93 C 4397, WL 31577 *1 (N.D. Ill. Jan. 26, 1995) ("The advice that counsel gave during the course of the investigation relating to the investigation is clearly relevant and cannot be considered privileged. It must be emphasized that it is [defendant] that has placed the investigation and the advice of counsel with respect to the investigation at issue in this case.").
Johnson's motion to compel discovery and to bar testimony is granted in part and denied in part as consistent with this order.
Date: APR 11 1997
JAMES H. ALESIA
United States District Judge