A recent New Jersey appellate decision serves as an important reminder that attorney-led workplace investigations may be protected by the attorney-client privilege and work-product doctrine, but those protections can be waived when an employer later relies on the investigation in their litigation defense.

In C.S. v. Brick Recycling Co., decided June 1, 2026, the Superior Court of New Jersey, Appellate Division considered whether an employer was required to produce materials generated during an outside counsel’s investigation into an employee’s sexual harassment complaint.

After receiving an employee sexual harassment complaint, the employer retained a law firm to investigate the allegations. The attorney-investigator ultimately produced a report substantiating that the harassment occurred. The reporting employee later resigned and filed suit under the New Jersey Law Against Discrimination, alleging sexual harassment and constructive discharge.

During discovery, the employer produced the final investigation report but withheld related materials, including drafts of the report, attorney notes, and communications between the investigator and company leadership, citing attorney-client privilege and work-product protections. The employer also asserted that it had acted reasonably and in good faith in response to the complaint.

The Appellate Division held that while attorney-led investigations may be privileged under New Jersey law, an employer may waive those protections when it affirmatively relies on the investigation to demonstrate the reasonableness of its actions. The court reiterated that a party cannot use an investigation as both a sword and a shield by relying on it as a defense while preventing scrutiny of the underlying materials.

The decision builds upon New Jersey’s longstanding approach to workplace investigation materials, including the principles discussed in Payton v. New Jersey Turnpike Authority, which recognized that investigative materials may become discoverable when an employer relies on its investigation and remedial actions as a defense to liability.

For employers and investigators, the takeaway is straightforward: privilege is not determined solely by who conducts the investigation. Rather, privilege can be affected by how the employer later uses the investigation in litigation. Organizations that anticipate relying on an investigation to demonstrate prompt, reasonable, or good-faith corrective action should understand that doing so may open the door to discovery of underlying investigative materials.

As Oppenheimer Investigations Group continues to expand its East Coast practice, we remain committed to monitoring legal developments in New Jersey and other jurisdictions that impact workplace investigations. Cases such as C.S. v. Brick Recycling Co. underscore the importance of discussing all aspects of an investigation with clients at the outset of every engagement.