A New Jersey appellate court issued a ruling suggesting that employers can successfully assert privilege under New Jersey law over work-product from an outside law firm’s investigation into workplace harassment or discrimination claims, even when the investigation is launched before a formal lawsuit is filed.

Quick Hits

• A New Jersey appellate court ruled that employers may be able to claim privilege over certain law firm investigation documents from an investigation initiated prior to a lawsuit under New Jersey law.
• The court noted that timing of an investigation does not negate privilege if the investigation aims for legal advice or litigation preparation.
• The court stated that raising an affirmative defense may waive privilege over certain relevant documents, but trial courts must conduct a “line-by-line,” “page-by-page” assessment of withheld documents to determine whether information is so “tenuously related” to the affirmative defense that it should not be produced in discovery.

On June 1, 2026, the Superior Court of New Jersey, Appellate Division, in C.S. v. Brick Recycling Company, vacated a trial court’s ruling that none of several documents related to a workplace sexual harassment investigation that an employer-defendant had sought to shield were privileged, and sent the issue back to the trial court for reconsideration. While the court did not make any substantive rulings on whether certain investigation documents are privileged, the decision provided insight...

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