Equal Employment Opportunity Commission, et al. v. Genesh, Inc.

Summary

The United States District Court for the District of Kansas ruled on intervenor-plaintiff LZ’s motion to compel documents withheld or redacted based on attorney-client privilege and work-product protection. The court held that communications involving Genesh’s outside harassment investigator could be privileged, but that Genesh waived privilege over communications concerning its investigation of LZ’s harassment complaint by asserting the Faragher/Ellerth affirmative defense. The court ordered production of unredacted documents corresponding to privilege log entries 2–4, 6–16, and 23–29 by February 20, 2026.

Holdings

1. An authorized consultant may act as a company's representative and the functional equivalent of the client when the consultant's communications with counsel are necessary to provide legal advice. Accordingly, Axis Point and Stuart's involvement did not, by itself, destroy the attorney-client privilege or constitute a waiver.
2. The emails listing a handful of basic pleadings and documents for Stuart to review before her deposition were not protected work product because the selection did not reveal counsel's mental processes.
3. Genesh did not waive privilege by failing to assert privilege objections over communications that Axis Point and Stuart produced in response to subpoenas.
4. Genesh did not waive privilege by failing to file a motion to quash or motion for protective order within the 14-day period referenced by Federal Rule of Civil Procedure 45(d)(2)(B).
5. By asserting the Faragher/Ellerth affirmative defense and relying on Stuart's investigation to show that Genesh exercised reasonable care to prevent and promptly correct harassment, Genesh waived attorney-client and work-product protection over communications concerning the LZ investigation, investigative procedures applicable to that investigation, and Genesh's subsequent actions in response.

Questions Presented

1. Whether communications between Genesh's counsel and Axis Point or Jana Stuart could fall within the attorney-client privilege despite Stuart's status as an outside consultant.
2. Whether counsel's selection of documents for Stuart to review in preparation for her deposition constituted protected work product.
3. Whether Genesh waived privilege by failing to assert privilege objections in response to LZ's written discovery.
4. Whether Genesh waived privilege by failing to file a motion to quash or motion for protective order within the subpoena objection period.
5. Whether Genesh waived attorney-client and work-product protection over communications concerning the investigation of LZ's sexual-harassment complaint by asserting the Faragher/Ellerth affirmative defense.

Disposition

other