66 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP at the direction of counsel, even before the outside law firm became involved, and that a primary purpose of the investigation was the furnishment of legal advice.549 The EEOC also argued that the employer’s assertion of a good faith defense to the EEOC’s claim for punitive damages put its subjective intentions at issue, thereby waiving privilege over those documents. Under Supreme Court precedent, a defendant in a Title VII case can avoid punitive damages by showing that it engaged in good faith efforts to comply with the statute. According to the EEOC, the assertion of that defense puts an employer’s state of mind at issue, and in particular, its intent and knowledge of the law. Under this theory, the employer’s investigation materials would reveal its state of mind with respect to the EEOC charge and its knowledge of the applicable law, so the EEOC should be entitled to obtain those documents in discovery.550 The employer argued the materials should stay privileged because it had disclaimed an intent to rely on the internal investigation to support its defense.551 After surveying the law of at-issue waiver, the court applied a more narrow interpretation, holding that “a party that has interposed a good faith defense but disclaimed reliance on privileged or protected materials—such as those created in connection with an internal investigation—does not waive protection over those materials.”552 Because the evidence the employer intended to rely on to prove its good faith defense was unconnected to its internal investigation, the court held that the privilege had not been waived: “the [employer’s] [good faith] defense relies on evidence that the hiring and compensation decisions at issue here were made in a good faith effort to comply with the law. Importantly, all those decisions predate the internal investigation because ‘the [employer] already had hired [comparator] as 549 Id. 550 Id. at 185. 551 Id. at 167. 552 Id. at 187.
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