Internal human resources investigations often generate numerous privilege and waiver issues. One recent case assessed a common scenario — raising a scary possibility, but then coming to the right conclusion.
In Gates v. Mack Molding Co., a company’s HR director twice carefully read a statement warning investigation target and later plaintiff Donald Gates that he “did not have the right to refuse to answer [her] questions, and that any refusal to answer a question would be taken into consideration” in deciding his future job status. Case No. 23-CV-02626, 2025 Vt. Super. LEXIS 45, at *4 (Vt. Super. Ct. Mar. 7, 2025). The court noted that the HR director’s statement “had been specifically prepared by [a lawyer] for her use during that meeting” — and thus she “may have waived a claim of privilege.” Id.
But the court then understandably held that even if the statement “constituted legal advice from an attorney to his client,” it was “not understood to be confidential” and thus “may never have qualified for the attorney-client privilege.” Id. at *4-5. Of course. Otherwise, a client sending a lawyer-drafted letter to a litigation adversary or a transactional counterparty might waive her privilege.
