When an employee or business partner accuses someone in your organization of illegal conduct, your first instinct should be to ask your lawyer to investigate so you can respond appropriately. A recent Superior Court decision, however, warns that even a lawyer’s investigation report might not be privileged. The case highlights the importance of understanding what is privileged and how easily that privileged can be waived.

In 2011, Dennis Burke, an orthopedic surgeon at Massachusetts General Hospital, raised concerns about a practice of “concurrent surgeries” or “double booking” at the hospital. If true, such a practice could create a serious risk of patient harm, for example, if patients were forced to wait under anesthesia while their assigned surgical team operated on another patient during their scheduled appointment.

Responding to the allegations, MGH hired a well-respected former United States Attorney, Donald K. Stern, to conduct an investigation, including through interviews of doctors and staff as well as studying peer reviewed material concerning adverse patient outcomes. Stern issued a report of his findings, which MGH claimed refuted Burke’s allegations. At various times since it was issued in 2011, MGH publicly touted the “Stern Report” to support its conclusion that its practices and procedures did not risk patient safety and to rehabilitate its public image.

Several years after he blew the whistle, MGH fired Burke. The hospital claimed he had violated its confidentiality policies; Burke claimed he was fired in retaliation for raising legitimate concerns about patient safety. When Burke sued MGH for wrongful termination, he sought a copy of the Stern Report, but the hospital objected claiming the report was privileged. At first, the Court ordered MGH to produce a redacted copy only, masking the privileged sections. After additional discovery, Burke asked the Court to reconsider and compel the production of the report in its entirety.

In a September 2019 decision, Superior Court Judge Rosemary Connolly, ordered the hospital to turn over the unredacted Stern Report in its entirety. Burke v. Gen. Hosp. Corp., No. 1784CV02876, 2019 WL 5296842 (Mass. Super. Sept. 20, 2019). The Court decided the hospital failed to establish that the redacted portions of the Stern Report were privileged communications between attorney and client for the purpose of rendering legal advice. Instead, the Court found Stern was hired to make recommendations for policy and procedural changes. MGH stakeholders viewed Stern as an independent investigator and not part of the legal team, which was corroborated by the fact that there were no entries on the privilege log to suggest the hospital viewed Stern as its legal counsel.

The Court also held that even if the redacted portions were privileged, the privilege had been waived. The Court found MGH used the report as a “sword and shield,” publicly defending itself by citing to it in the press and in response to inquiries from government investigators. MGH also provided an unredacted copy to its public relations firm to help shape their public messaging. Where the hallmark of attorney client communications is confidentiality, the hospital’s public use of the report undercut its claims for privilege.

The lesson from this case is not to avoid engaging counsel to investigate allegations of wrongdoing. A thorough inquiry by counsel is often critical to strategically prepare for litigation or bolster your policies and procedures to avoid problems in the future.

Rather, this case cautions businesses and lawyers to remain mindful of the privilege during the internal investigation. If you plan to use the investigation to defend yourself in the public eye or respond to concerns raised by others, be prepared to produce the report in discovery. If you instead want to maintain the privilege, be sure to consistently and carefully protect the investigation’s confidentiality. Memorialize in writing that the investigation is for the purpose of obtaining legal advice, remind employees to maintain confidentiality and think twice before using the investigation as part of your public communications strategy. As always, work with your lawyers to set goals and develop a strategy early in the process to be sure your diligent investigation doesn’t end up working against you.