Hire a firm, run the probe, win the case – then the file stops being yours
Run a harassment investigation through a law firm, then lean on it in court, and you may have to hand the whole file over.
A New Jersey appeals court has spelled out when employers forfeit the right to keep an outside workplace investigation secret. The decision came down on June 1, 2026, and lands on a problem HR teams face constantly.
The facts are straightforward. A truck driver identified only as C.S. worked for Brick Recycling Company. In June 2023, he told the company's owner and president, Peter DeCenzo Jr., that a co-worker was stalking him and had made unwanted sexual advances. According to the decision, he also said the co-worker had reached his bank records without permission and passed that information to someone else.
The company acted quickly. DeCenzo ordered the two employees to stay apart, then brought in the law firm Ruderman & Roth to investigate. A firm lawyer, Ellen Horn, ran the review and produced a 45-page report. It concluded that it was more likely than not that the co-worker had violated the company's anti-harassment policy. In short, the firm substantiated the complaint.
C.S. resigned before the investigation wrapped up. He then sued under New Jersey's Law Against Discrimination, alleging sexual harassment and constructive discharge - being forced out by intolerable conditions. The company responded with 49 affirmative defenses, among them a claim that it had acted in good faith and reasonably.
The dispute that reached the appeals court was narrower, and it is the part HR should study. The company turned over Horn's full report but withheld eight related items: a partial draft of the report, the lawyer's notes from meetings and calls with DeCenzo, the retainer agreement, and others. It claimed attorney-client privilege and work-product protection. The trial judge disagreed and ordered all of it disclosed. The company appealed.
The Appellate Division vacated that order. Under New Jersey's long-standing Payton framework, an attorney-led investigation can be privileged. But if an employer relies on that investigation to argue it behaved reasonably, it can waive the privilege and be forced to produce the documents underneath. The court found the company was relying on the Horn investigation as a defense, even though it never listed the report as its own numbered defense. When the panel asked the company's lawyer at argument whether the company wanted to drop that reliance and protect the privilege, counsel declined.
Even so, the court refused to order a wholesale handover. The trial judge, it said, had skipped the hard work. A judge must move document by document, and where necessary line by line, to sort out what is privileged, what is too remotely related to the defense to matter, and what reveals confidential legal advice that should be redacted. The panel also signaled that Horn's draft report likely should not be disclosed at all, likening it to draft expert reports, which are generally shielded.
The case now returns to the trial court for that detailed review. The harassment and constructive-discharge claims have not been tested, and the ruling decides nothing about who ultimately prevails.
The takeaways for HR are concrete. A workplace investigation is not sealed by default, and how you use it later governs how much of it stays private. Plan to point to a clean investigation as proof you acted responsibly, and you should expect to open the file behind it. Keep privilege logs detailed. Document legal advice separately from factual findings. And pay attention to when litigation becomes reasonably anticipated, because that timing can decide whether work-product protection attaches at all.
