Moore Freight Services, Inc. v. Grant Mize et al.

This is an interlocutory appeal involving a discovery dispute. The plaintiff corporation initiated this action to enforce a non-competition provision in an employment agreement, naming as defendants the plaintiff’s former chief operating officer and his current employer. Central to the discovery dispute, the plaintiff averred that it had terminated the chief operating officer’s employment for cause based on having learned that he had been involved in a payment scheme involving benefits and favors to an employee of one of the plaintiff’s customers. The defendants averred that the employment termination had actually been due to the plaintiff’s corporate restructuring. Prior to the chief operating officer’s employment termination, the plaintiff had retained outside counsel to conduct an internal investigation, and the customer whose employee had been identified as the recipient of the scheme had likewise conducted an investigation. Upon the defendants’ motion to compel discovery of materials related to the plaintiff’s internal investigation, the plaintiff opposed the motion, asserting that the materials were entitled to protection pursuant to the attorney-client privilege, common interest privilege, and work product doctrine. Following a hearing, the trial court found that the defendants had established, prima facie, that the plaintiff had waived the asserted privileges and protections by placing the internal investigation materials at issue in the litigation. The trial court then conducted an in camera review of specific materials presented to the court during the final day of the hearing. At the time these materials were submitted, it was undisputed that the only attorney work product included in the materials was “fact” or “ordinary” work product with no “opinion” work product included. Following in camera review, the trial court entered an order granting the motion to compel specifically as to the materials it had reviewed. Upon the plaintiff’s motion, the trial court entered an agreed order granting permission for application to this Court for an interlocutory appeal addressing the certified issue of whether the plaintiff had “waived the work product, attorney-client, and common interest privilege or protection by placing the internal investigation ‘at issue’ in this litigation.” This Court subsequently granted permission for interlocutory appeal.