Need a few pointers on how to help secure privilege protection for internal investigations? Then take a quick look at Celanese Corporationâs conduct when investigating a horrific on-the-job injury.
While a Texas trial court held that the attorneyâclient privilege did not apply to Celaneseâs investigation materials, an appellate court granted a writ of mandamus and reversed. In re: Fairway Methanol LLC and Celanese Ltd., 2017 WL 422006 (Tex. Ct. App. Jan. 31, 2017). You may read the decision here.
Post-Injury Investigation
On Nov. 19, 2014, Jose Salazar, a Celanese-employed electrician in Pasadena, Texas, was injured when he tripped and fell into charged electrical equipment. The next day, Nov. 20, Gary Rowen, a Celanese in-house lawyer, perceived a workerâs compensation or personal injury lawsuit and immediately created an investigative team to provide accident-related information to the Celanese legal department.
In subsequent litigation, Salazar requested âany and all incident, accident, or investigation reportsâ pertaining to his incident. The trial court conducted an in camera review of the putatively privileged documents and overruled Celaneseâs privilege objection. You may read the trial courtâs order here.
In-House Lawyerâs Affidavit Prevails
The Texas Court of Appeals granted Celaneseâs mandamus petition and reversed the trial courtâs decision. Texasâs attorneyâclient privilege rule, Tex. R. Evid. 503(b) provides that communications between lawyer and client, but also their representatives âwho ⌠makes or receives a confidential communication while acting in the scope of employment.â
In-house lawyer Rowen submitted an affidavit that persuaded the court that the privilege protected most of Celaneseâs investigation materials from discovery. Rowen made these unrebutted declarationsâ
- He, as in-house lawyer, requested that an investigative team provide âthe Celanese Legal Department with information needed to assess potential liability.â
- The investigationâs primary purpose was to âaid Celanese in preparing to defend itself.â
- The investigative team âacted on instructions from Celanese attorneysâ âat all times.â
- The team marked all communications and documents as âPrivileged and Confidentialâ and âAttorneyâClient PrivilegeâAttorney Work Product.â
- The team communicated its findings only to the Celanese Legal Department.
This affidavit, which you may read in full here, persuaded the appellate court in finding that Celanese created the investigation-related communications and documents in a confidential manner and for the purpose of rendering or receiving legal advice.
Primary Purpose Standard?
Salazar raised a good argument that the investigationâs âprimary purposeâ was not legal-related, but business relatedâto prevent future accidents and improve safety. Indeed, Rowenâs affidavit also stated that the Celanese wanted the investigation so that, as a âsecondary concern,â the legal department could provide âbusiness adviceâ related to potential termination of at-fault employees.
The court, however, rejected the theory that the privilege-proponent must show that it created the putatively privileged communications âfor the primary purpose of soliciting legal, rather than business advice.â Â The court recognized that some federal courts apply the âprimary purposeâ standard to dual-purpose communications, but correctly noted that those decisions do not bind Texas courts.