Important Safety Tip: Transcribed Voicemails and Protecting Internal Information

An employment discrimination case involving a major law firm in Boston highlights the importance of protecting internal investigations and assessments from searches by people in the general company workforce. In this case, I think it’s going to be an expensive lesson for the law firm, and it has important lessons for any employer that uses digital storage of wordprocessing documents. .

It also highlights a stunning lack of technological sophistication on the part of firm management with respect to its own confidential information.

NOTE:  The case is reported in the Massachusetts Lawyers' Weekly, here, but you'll need a subscription.

A female associate of the firm raised an internal complaint that she was being sexually harassed by her supervising partner. The firm assigned another partner to investigate her claim. Unfortunately, the investigating partner had some issues that apparently raised concerns about his objectivity with respect to the female associate’s complaint. The law firm’s diversity chair, a lawyer herself, spoke with the investigating partner, and then at 5:30 AM one day left a detailed message on the voicemail of the firm's managing partner. Her message indicated that the investigating partner was overly defensive and automatically discounted complaints from firm employees about their working conditions.  She also strongly criticized the firm for its knee-jerk reaction in ignoring or not taking seriously sexual harassment complaints.

For whatever reason, the managing partner felt that it was appropriate to transcribe this oral message into a document that was then preserved in the firm's digital wordprocessing files. It was not password protected, or otherwise segregated from other documents in the system, and, incredibly, was open to search by anyone with access to the system. Of course, the female associate found it, copied it, and is using it as evidence in the discrimination case she ultimately filed against the law firm.

The law firm has tried to prevent the use of this document, with its highly damaging admissions, by claiming it was a confidential attorney-client privileged document, or, at the very least, that the female associate violated her ethical obligations as a lawyer by removing firm property for her own personal use.

The state court official overseeing discovery disagreed. The transcription did not contain legal advice to the firm (which would have made it attorney-client privileged, at least) nor did it discuss specific aspects of defending or prosecuting the discrimination charge, which might have made it protectable as work product. Instead, the official found that the transcription simply discussed the law firm's environment with respect to diversity and gender at the time when the female associate worked there.  The matter goes before the trial judge next week for another review.

The managing partner who ordered the transcription opined recently that the female associate "was in for a very important lesson in the law" if she thought that just because his doors were open and his files were in his office that she was authorized to go get those files.  But that seems to me to be a completely wrong analogy. The female associate wasn't in his office going through his files, she was working in a common access area open to lawyers, secretaries, paralegals, and God knows who else at the firm. Moreover, even though it would have been relatively simple to protect the transcription with a password, the managing partner didn't think to do that. And finally, fundamentally, who transcribes and makes a permanent record of a message like this? This is precisely the kind of internal assessment information that should be transmitted orally and kept that way, or done with clear attorney client privilege attributes.

Further complicating things is the fact that the Massachusetts Board of Bar Overseers has recommended that the female associate receive a reprimand for taking a document that she should have realized was confidential and not intended for this use.

Well, duh.  Smoking gun documents admitting that your company is ignoring sexual harassment complaints are never intended to be used in a lawsuit.  At this point, the document is admissible evidence. Also, at this point, it's quite clear that the law firm would never have released this as part of its normal discovery responses, or even revealed its existence.  Given that the firm did not take even the basic steps necessary to protect the alleged confidential nature of the information, it's hard for me to see this as an ethical violation, even a minor one.

The lesson here is obvious: some information is best transmitted without a permanent record being established, but if you establish such a permanent record, at least be smart enough to protect it so that a litigant in your employ can’t wander across it in your generic document files.