Oliver Fenceroy v. Gelita USA, Inc., Tom Haire, and Jeff Tolsma ( 2018 )


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  •                  IN THE SUPREME COURT OF IOWA
                                     No. 16–0775
    
                                Filed February 23, 2018
    
    
    OLIVER FENCEROY,
    
          Appellee,
    
    vs.
    
    GELITA USA, INC., TOM HAIRE, and JEFF TOLSMA,
    
          Appellants,
    
    and
    
    BOB KERSBERGEN and JEREMIE KNEIP,
    
          Defendants.
    
    
    
          Appeal from the Iowa District Court for Woodbury County,
    
    Jeffrey A. Neary, Judge.
    
    
    
          Interlocutory review of a district court order denying a protective
    
    order and permitting discovery into defense counsel’s prelawsuit
    
    investigation.    DISTRICT COURT ORDER AFFIRMED AND CASE
    
    REMANDED.
    
    
    
          Aaron A. Clark of McGrath North PC LLO, Omaha, Nebraska, for
    
    appellants.
    
    
    
          Stanley E. Munger of Munger, Reinschmidt & Denne, LLP,
    
    Sioux City, for appellee.
                                         2
    
    CADY, Chief Justice.
    
          This review presents a significant issue regarding the boundaries
    
    of attorney–client privilege and work-product protection. We must decide
    
    whether plaintiff’s counsel may depose defense counsel and obtain
    
    counsel’s prelawsuit work product. After leaving his job, plaintiff filed an
    
    administrative complaint charging his former employer with race
    
    discrimination.   In response to the charge, the employer hired an
    
    attorney to defend the company and investigate the merits of the charge.
    
    The employer filed an administrative position statement wherein it relied
    
    upon the attorney’s investigation to support its Faragher–Ellerth
    
    affirmative defense. In the subsequent civil action, the employer retained
    
    the same attorney and again raised the affirmative defense.               The
    
    employer claimed attorney–client privilege and work-product protection
    
    over the investigation and moved for a protective order to prevent plaintiff
    
    from deposing defense counsel and obtaining her investigation notes.
    
    Yet, in its motion for summary judgment, the employer again relied upon
    
    the investigation to support its defense.   The district court denied the
    
    protective order, and we granted the employer’s interlocutory appeal.
    
          We conclude the district court did not abuse its discretion by
    
    denying the defendants’ protective order.       When an employer raises a
    
    Faragher–Ellerth affirmative    defense   and    relies   upon   an   internal
    
    investigation to support that defense, the employer waives attorney–client
    
    privilege and nonopinion work-product protection over testimony and
    
    documents relating to the investigation.     On remand, the employer is
    
    permitted to amend its answer and brief to limit the affirmative defense
    
    to only the period of plaintiff’s employment. If the employer declines to
    
    so amend, it may not claim attorney–client privilege or work-product
                                             3
    
    protection over the 2013 investigation, and plaintiff may depose defense
    
    counsel as well as obtain counsel’s investigation notes.
    
          I. Factual Background and Proceedings.
    
          Oliver Fenceroy, an African-American man, was employed by Gelita
    
    USA, Inc. (Gelita), a maker of gelatin products.         He began working at
    
    Gelita’s Sergeant Bluff plant in 1975.          In this lawsuit, he alleges he
    
    experienced      consistent   racial   harassment    from     coemployees     and
    
    supervisors throughout his employment.             His complaint identified a
    
    number of workplace incidents involving racially disparaging comments
    
    by employees.
    
          Gelita     implemented     an    antiharassment       policy   that   barred
    
    disparate treatment in the workplace on the basis of race.              Fenceroy
    
    acknowledged receiving a written memorandum that discussed the
    
    antiharassment policy in August of 2010.                Additionally, Fenceroy
    
    attended company trainings in 2011, 2012, and 2013 that discussed
    
    workplace harassment.         He also received copies of Gelita’s Code of
    
    Conduct, which contained the company’s antiharassment policy, in 2011
    
    and 2012. Further, Gelita conducted a survey in 2012 that requested
    
    anonymous feedback about potential problems or changes to the
    
    company.       Fenceroy received the survey but did not report any
    
    harassment.
    
          Gelita’s    antiharassment       policy   contained    detailed   reporting
    
    procedures. The policy instructed employees to report any harassment
    
    to their supervisors or to the human resources department.                   If an
    
    employee is harassed by his or her direct supervisor, the policy permitted
    
    an employee to bypass that individual and report the harassment to the
    
    supervisor’s superior.
                                         4
    
          It is undisputed that Fenceroy only made one complaint to Gelita
    
    about racial harassment. In September of 2011, Fenceroy complained to
    
    Gelita’s Vice President of Business Support, Jeff Tolsma, about a rope
    
    tied on the company’s production floor. Fenceroy believed it represented
    
    a noose. Tolsma notified the plant’s production manager, Jeremie Kneip,
    
    of the complaint. The two individuals located the rope and determined it
    
    was not a noose, but rather a loop used to facilitate pulling a scale
    
    downward. Nevertheless, they untied the knot so there was no longer a
    
    loop in the rope.
    
          Fenceroy stopped working for Gelita in March 2013. He filed a
    
    complaint with the Iowa Civil Rights Commission (ICRC) a short time
    
    later. The complaint charged Gelita with race discrimination.        Upon
    
    receipt of Fenceroy’s ICRC charge, Gelita retained attorney Ruth
    
    Horvatich and tasked her with developing a strategy to defend the
    
    company during administrative proceedings.
    
          Pursuant to this representation, Horvatich interviewed several
    
    Gelita employees to ascertain the merits of Fenceroy’s complaint. Tolsma
    
    was present for and participated in each interview.              A union
    
    representative, John Hoswald, was also present during the employee
    
    interviews.   At the end of each interview, Horvatich drafted a witness
    
    statement that summarized the employee’s account and instructed the
    
    employee to sign the document.
    
          Horvatich’s investigation revealed some Gelita employees had made
    
    racially disparaging comments in the workplace.        Gelita subsequently
    
    terminated one employee, Bob Kersbergen, and disciplined others,
    
    including Kent Cosgrove, Tom Haire, and Lewis Bergenske.        Horvatich
    
    did not participate in any of the disciplinary decisions.
                                        5
    
          On May 30, 2013, Gelita filed a position statement with the ICRC
    
    in response to Fenceroy’s discrimination charge. The statement, drafted
    
    by Horvatich, addressed the merits of Fenceroy’s racial harassment
    
    claim. It argued Gelita could not be held vicariously liable for supervisor
    
    harassment because it could assert the Faragher–Ellerth affirmative
    
    defense.   Specifically, in discussing the affirmative defense, Gelita
    
    argued,
    
          [T]he Company distributed a valid discrimination and
          harassment policy, which contained flexible reporting
          procedures and listed individuals that acts of harassment
          could be reported to, who were in a position to take
          corrective action. The discrimination and harassment policy
          also contains detailed procedures relating to the
          investigation and resolution of complaints. After learning of
          Complainant’s complaint relating to the rope, the Company
          took immediate action. The same day of the complaint, the
          Company performed an investigation and resolved the
          complaint by untying the knot that was in the rope, which
          has remained untied since that time. The Company notified
          the Complainant of this resolution. Additionally, after the
          Complainant filed the charge at issue with the Iowa Civil
          Rights Commission, the Company investigated the allegations
          of harassment, which resulted in the termination of Mr.
          Kersbergen and the discipline of Mr. Haire, Mr. Bergenske,
          and Mr. Cosgrove. During his employment, Complainant
          only made one report of harassment and unreasonable failed
          to report any other allegations to management, despite the
          Company’s clear reporting procedures. Thus, it is clear that
          the Company exercised reasonable care to prevent
          harassment, promptly corrected any harassing behavior, and
          the Complainant unreasonably failed to take advantage of
          the Company’s clear reporting procedures. As a result, the
          Complainant’s allegation of racial harassment fails.
    
    (Emphasis added.)     Thus, the statement Gelita filed with the ICRC
    
    signaled it would rely on its investigation into the complaint to help
    
    support the first prong of its affirmative defense that it exercised
    
    reasonable care to prevent and correct harassing behavior.
    
          At the culmination of the administrative proceedings, the ICRC
    
    issued Fenceroy a right to sue. On May 30, 2014, Fenceroy filed a civil
                                        6
    
    action in district court against Gelita and four named employees: Bob
    
    Kersbergen, Tom Haire, Jeff Tolsma, and Jeremie Kneip.           Fenceroy
    
    alleged the defendants engaged in racial harassment in violation of the
    
    Iowa Civil Rights Act and he was constructively discharged.       He also
    
    alleged Kersbergen and Haire engaged in tortious infliction of severe
    
    emotional distress.
    
          Gelita again retained Horvatich to defend the company, as well as
    
    Haire and Tolsma, in the civil action. The defendants filed an answer
    
    that raised a number of affirmative defenses.        One defense alleged
    
    Fenceroy “unreasonably failed to take advantage of any preventative or
    
    corrective opportunities provided by Defendant Gelita”; and Gelita
    
    “exercised reasonable care to prevent and promptly correct any harassing
    
    behavior.”
    
          During discovery, defendants produced the witness statements
    
    drafted by Horvatich and signed by the employees during her 2013
    
    investigation.     Fenceroy deposed some of the employees Horvatich
    
    interviewed during the investigation.     He also deposed Tolsma and
    
    inquired into the nature and scope of the 2013 investigation, as well as
    
    the subsequent disciplinary decisions.
    
          On March 23, 2016, counsel for Fenceroy issued a notice to depose
    
    Horvatich.       He also requested Horvatich provide “notes from the
    
    investigation that resulted in Gelita’s Position Statement,” as well as any
    
    “notes from interviews” with Gelita employees.
    
          Defendants moved for a protective order. They asserted Fenceroy’s
    
    discovery request sought privileged information. They claimed the 2013
    
    investigation was solely for the purpose of preparing a defense to
    
    plaintiff’s ICRC charge, and all communications between Gelita and
    
    Horvatich, as well as any notes taken by Horvatich, were done in
                                         7
    
    anticipation of litigation. They further argued the investigation was not
    
    “at issue” in their affirmative defense because it occurred after Fenceroy
    
    left the company and their actions could not have remedied any terms or
    
    conditions of his employment.
    
          In resisting the protective order, Fenceroy asserted the defendants’
    
    impliedly waived any privileges. He claimed the proceedings before the
    
    ICRC revealed Gelita intended to rely on its postcomplaint investigation
    
    by Horvatich to help prove its affirmative defense. More specifically, he
    
    argued the investigation conducted after he left his employment was
    
    relevant to the lawsuit because it could be used in two ways. First, the
    
    investigation could be used to show its reasonableness in preventing
    
    harassing workplace behavior.      Second, it could help establish that
    
    Fenceroy should have taken advantage of its response by making his
    
    complaint before he left his employment.
    
          Prior to the hearing on the motion for a protective order,
    
    defendants filed a motion for summary judgment. This motion claimed
    
    defendants were entitled to judgment as a matter of law based on their
    
    Faragher–Ellerth defense.       Within its discussion of this defense,
    
    specifically within a subsection titled “Gelita Exercised Reasonable Care
    
    to Prevent and Correct Promptly Any Harassing Behavior,” defendants
    
    asserted that “[e]ven though Plaintiff was no longer with Gelita at the
    
    time of his Complaint, in response to his charge, the Company
    
    investigated his allegations, discharged one employee, and disciplined
    
    three others.”
    
          The district court denied the protective order, finding the
    
    defendants waived attorney–client privilege with respect to the 2013
    
    investigation. It concluded Horvatich’s investigation was a key piece of
    
    evidence in litigating the affirmative defense and Fenceroy “must be
                                         8
    
    permitted to probe the substance of [the investigation] to determine its
    
    sufficiency.”     The court further held defendants waived work-product
    
    protection by placing the 2013 investigation at issue. Defendants filed
    
    for, and we granted, interlocutory review.
    
          On review, defendants continue to maintain their Faragher–Ellerth
    
    defense is “based upon Fenceroy’s unreasonable failure to take
    
    advantage of preventative and corrective opportunities” during his
    
    employment. Defendants further allege the investigation cannot be “at
    
    issue” with respect to the affirmative defense because the evidence is “not
    
    necessary” to prevail in their Faragher–Ellerth defense. Fenceroy argues
    
    on review that defendants’ position is contrary to their actions before the
    
    district court.    To illustrate, Fenceroy points to defendants’ summary
    
    judgment motion, which referenced the investigation as evidence of
    
    Gelita’s reasonable corrective actions when faced with a harassment
    
    complaint.
    
          II. Standard of Review.
    
          We review district court rulings on discovery matters for abuse of
    
    discretion.     Jones v. Univ. of Iowa, 
    836 N.W.2d 127
    , 139 (Iowa 2013).
    
    Discovery rulings are “committed to the sound discretion of the trial
    
    court.” State v. Ary, 
    877 N.W.2d 686
    , 702 (Iowa 2016). “A district court
    
    abuses its discretion ‘when the grounds underlying a district court order
    
    are clearly untenable or unreasonable.’ ”     Sioux Pharm, Inc. v. Eagle
    
    Labs., Inc., 
    865 N.W.2d 528
    , 535 (Iowa 2015) (quoting Mediacom Iowa,
    
    L.L.C. v. Inc. City of Spencer, 
    682 N.W.2d 62
    , 66 (Iowa 2004)).
    
          III. Analysis.
    
          A. Implied At-Issue Waiver of Attorney–Client Privilege.
    
          1. The Faragher–Ellerth affirmative defense.      Our law has long
    
    recognized that employers have a duty to take reasonable measures to
                                        9
    
    investigate and eliminate workplace discrimination. At the same time,
    
    growing attention has focused on workplace discrimination committed by
    
    supervisors   and   managers,   largely   due   to   their   authority   over
    
    subordinate employees bestowed on them by the employer. See Faragher
    
    v. City of Boca Raton, 
    524 U.S. 775
    , 802, 
    118 S. Ct. 2275
    , 2290 (1998)
    
    (reasoning that supervisors who engage in workplace harassment are
    
    aided in their agency relationship to the employer). This attention has
    
    made employers vicariously liable for discriminatory harassment by
    
    supervisors and heightened the importance for employers to affirmatively
    
    act to prevent workplace discriminatory conduct and properly respond to
    
    employee claims of workplace discrimination when they arise. See id. at
    
    807–08, 118 S. Ct. at 2292–93; Burlington Indus., Inc. v. Ellerth, 
    524 U.S. 742
    , 764–65, 
    118 S. Ct. 2257
    , 2270 (1998). It has also led to a two-part
    
    affirmative defense to claims of vicarious liability for employers who
    
    responsibly act to avoid workplace discrimination. Faragher, 524 U.S. at
    
    807, 118 S. Ct. at 2293. This defense allows these employers to escape
    
    vicarious liability for claims that do not involve tangible employment
    
    action. Id.
    
          The two-part defense requires employers to show reasonable care
    
    was exercised to “prevent and correct promptly any . . . harassing
    
    behavior” and to further show the claimant employee “unreasonably
    
    failed to take advantage of any preventive or corrective opportunities
    
    provided by the employer.” Id. This remedial action defense was set out
    
    in two landmark decisions by the United States Supreme Court in 1998,
    
    and is commonly known as the Faragher–Ellerth defense. See id.; Ellerth,
    
    524 U.S. at 765, 118 S. Ct. at 2270.         We adopted the defense in
    
    Farmland Foods, Inc. v. Dubuque Human Rights Commission, 
    672 N.W.2d 733
    , 744 n.2 (Iowa 2003). The policy behind the affirmative defense is
                                         10
    
    simple and direct. By offering a complete defense to vicarious liability, it
    
    encourages     employers    to   prevent    workplace     discrimination   and
    
    harassment by adopting antidiscrimination policies and complaint
    
    procedures or by taking other suitable action.
    
          In adopting the vicarious liability standard established in Faragher
    
    and Ellerth, we recently clarified that vicarious liability does not replace
    
    the direct negligence theory of employer liability, but rather supplements
    
    the theory with an additional agency-based standard.             Haskenhoff v.
    
    Homeland Energy Sols., LLC, 
    897 N.W.2d 553
    , 574 (Iowa 2017). In this
    
    case, plaintiff has alleged harassment by both supervisory and
    
    nonsupervisory employees.        Consequently, defendants have properly
    
    raised the Faragher–Ellerth affirmative defense in regard to the claims of
    
    vicarious liability for supervisor harassment.
    
          2. Waiver of attorney–client privilege through the Faragher–Ellerth
    
    affirmative defense.       In Iowa, affirmative defenses are raised in
    
    responsive pleadings in a lawsuit. The evidence to support a defense is
    
    then presented at trial or summary adjudication. While part of the focus
    
    of the Faragher–Ellerth affirmative defense is on the reasonableness of
    
    the plaintiff’s conduct in utilizing complaint procedures to avoid harm,
    
    equal focus is on the conduct of the employer in preventing and
    
    responding to incidents of harassment.        This evidence can include the
    
    actions   of    the    employer     in     establishing    and    maintaining
    
    antidiscrimination policies and complaint procedures, past conduct by
    
    the employer in responding to complaints, and evidence of employer
    
    conduct in responding to the specific allegations articulated by the
    
    plaintiff in the pending legal proceeding.       As a result, an employer’s
    
    investigation into a harassment complaint that subsequently results in a
    
    lawsuit can become the centerpiece of the affirmative defense. Moreover,
                                           11
    
    those who assist the employer in the investigation can become important
    
    supporting witnesses. Thus, the issue we confront in this case surfaces
    
    when, as in this case, an employer uses an attorney to conduct an
    
    investigation into a complaint, and the investigation gathered relevant
    
    evidence sought to be used by the employer to support the Faragher–
    
    Ellerth affirmative defense in a subsequent lawsuit.
    
            Our law recognizes that a “confidential communication between an
    
    attorney and the attorney’s client is absolutely privileged from disclosure
    
    against the will of the client.” Shook v. City of Davenport, 
    497 N.W.2d 883
    , 886 (Iowa 1993), abrogated on other grounds by Wells Dairy, Inc. v.
    
    Am. Indus. Refrigeration, Inc., 
    690 N.W.2d 38
    , 48 (Iowa 2004).      At the
    
    same time, a basic component of a fair trial requires that when a party
    
    injects a legal issue into a lawsuit, the opposing party is entitled to
    
    discover the relevant evidence concerning the issue. Squealer Feeds v.
    
    Pickering, 
    530 N.W.2d 678
    , 684 (Iowa 1995), abrogated on other grounds
    
    by Wells Dairy, 690 N.W.2d at 48.           When these two venerable legal
    
    principles come face to face because relevant information concerning an
    
    issue injected into a lawsuit by a party includes communications
    
    between that party and his or her attorney, we have concluded that the
    
    party who injects the issue into the heart of a lawsuit impliedly waives
    
    the attorney–client privilege.   Id.   The outcome is derived from basic
    
    fairness and requires the party injecting the issue into the lawsuit to
    
    decide if the privileged information is important enough to the lawsuit to
    
    waive the privilege. These two legal principles come face to face in this
    
    case.
    
            We have confronted the clash of these two doctrines in prior cases,
    
    but never in regard to the Faragher–Ellerth defense.       Courts in other
    
    jurisdictions, however, have held that when a defendant asserts the
                                         12
    
    Faragher–Ellerth defense and then relies on an internal investigation to
    
    support the defense, it waives attorney–client privilege over the
    
    investigation. See, e.g., Angelone v. Xerox Corp., No. 09–CV–6019, 
    2011 WL 4473534
    , at *2 (W.D.N.Y. Sept. 26, 2011) (“[W]hen a Title VII
    
    defendant affirmatively invokes a Faragher–Ellerth defense that is
    
    premised, in whole in or part, on the results of an internal investigation,
    
    the defendant waives the attorney-client privilege and work product
    
    protections for not only the report itself, but for all documents, witness
    
    interviews, notes and memoranda created as part of and in furtherance
    
    of the investigation.”); Treat v. Tom Kelley Buick Pontiac GMC, Inc.,
    
    No. 1:08–CV–173, 
    2009 WL 1543651
    , at *12 (N.D. Ind. June 2, 2009)
    
    (“[A] defendant may also waive the attorney-client privilege if it asserts its
    
    investigation as part of its defense.”); EEOC v. Outback Steakhouse of
    
    Fla., Inc., 
    251 F.R.D. 603
    , 612 (D. Colo. 2008) (“The Court agrees that to
    
    the extent that Defendants have asserted the Faragher/Ellerth affirmative
    
    defense, they have waived the protections of the attorney-client privilege
    
    and work product doctrine regarding investigations into complaints made
    
    by female employees.”); Walker v. County of Contra Costa, 
    227 F.R.D. 529
    , 535 (N.D. Cal. 2005) (“If Defendants assert as an affirmative defense
    
    the adequacy of their pre-litigation investigation into Walker’s claims of
    
    discrimination, then they waive the attorney-client privilege and the work
    
    product    doctrine   with    respect     to   documents    reflecting   that
    
    investigation.”).
    
          This line of cases stems from the seminal case of Harding v. Dana
    
    Transport, Inc., 
    914 F. Supp. 1084
    , 1096 (D.N.J. 1996). In Harding, two
    
    female employees brought administrative complaints against their
    
    employer, Dana, alleging sex discrimination.          Id. at 1087.       Dana
    
    subsequently retained an attorney, who conducted an investigation for
                                         13
    
    the purpose of formulating a response.        Id. at 1088.     The attorney
    
    interviewed the company’s president, controller, and two managers. Id.
    
    Dana then relied on this investigation as part of its affirmative defense in
    
    the administrative proceedings, as well as the subsequent lawsuit. Id.
    
    When plaintiffs’ counsel sought to depose the attorney about the
    
    investigation, Dana argued the information was privileged because “it did
    
    not assert reliance on the advice of counsel as an affirmative defense,”
    
    but rather “merely intend[ed] to offer the fact that [their attorney] did
    
    conduct an investigation.”     Id. at 1096.    The court concluded Dana
    
    waived attorney–client privilege. Id.
    
                  Discovery of the content of the investigation is relevant
          to much more than the state of mind of Dana. Rather, the
          investigation, itself, provides a defense to liability.        As
          previously reviewed, Title VII permits employer liability which
          employers may refute by proving that they reasonably and
          sufficiently investigated the allegations of discrimination.
          Dana has attempted to utilize the results of Mr. Bowe’s
          investigation both as a defense to liability under Title VII and
          as an aspect of its preparation for the sexual discrimination
          trial itself. By asking Mr. Bowe to serve multiple duties, the
          defendants have fused the roles of internal investigator and
          legal advisor. Consequently, Dana cannot now argue that its
          own process is shielded from discovery. Consistent with the
          doctrine of fairness, the plaintiffs must be permitted to probe
          the substance of Dana’s alleged investigation to determine its
          sufficiency. Without having evidence of the actual content of
          the investigation, neither the plaintiffs nor the fact-finder at
          trial can discern its adequacy.
    
    Id. (citation omitted). Consequently, the court found the employer could
    
    not avoid discovery by arguing that the relevance of the investigation was
    
    not its content, but that it was conducted. Id. Instead, the court found
    
    that the adequacy or reasonableness of the investigation was the relevant
    
    fact injected into the lawsuit by the defendant, which made the content
    
    of the investigation relevant. Id.
                                          14
    
          We agree that an employer who relies on a presuit investigation to
    
    support a Faragher–Ellerth affirmative defense waives attorney–client
    
    privilege when the investigation is conducted by an attorney. Normally,
    
    the process of an investigation into a complaint is at issue when the
    
    Faragher–Ellerth defense is asserted, “including what the employer knew
    
    of the employee’s complaints and when.”            Musa-Muaremi v. Florists’
    
    Transworld Delivery, Inc., 
    270 F.R.D. 312
    , 319 (N.D. Ill. 2010). When an
    
    employer affirmatively relies on the reasonableness of its investigation to
    
    support the defense, “[t]he only way that Plaintiff, or the finder of fact,
    
    can determine the reasonableness of the Defendant’s investigation is
    
    through full disclosure of the contents” of the investigation. Id. (quoting
    
    Brownell v. Roadway Package Sys., Inc., 
    185 F.R.D. 19
    , 25 (N.D.N.Y.
    
    1999)). In order to adequately challenge a Faragher–Ellerth affirmative
    
    defense, plaintiff must be permitted to probe the nature and scope of the
    
    relied upon investigation. It would be fundamentally unfair to allow an
    
    employer to shield material facts from discovery simply by hiring the
    
    same attorney who conducted a presuit investigation to represent the
    
    employer in the subsequent civil action.
    
          The key element behind this authority is that the Faragher–Ellerth
    
    defense must not only be pled, but the employer must then rely on the
    
    attorney’s investigation into plaintiff’s discrimination allegations in
    
    proving the defense. When the reasonableness of the investigation into
    
    the allegations is relied upon as a defense, the contents of the
    
    investigation are placed into issue and become subject to disclosure.
    
          3. Merits.     Here,   Gelita    expressly     relied   on   Horvatich’s
    
    investigation to support its Faragher–Ellerth affirmative defense in its
    
    ICRC position statement.     In the civil action, defendants raised the
    
    affirmative defense in their answer. When moving for a protective order,
                                            15
    
    defendants argued the investigation could not be at issue, as Fenceroy
    
    had already left his position. Yet, in their motion for summary judgment,
    
    within a subsection entitled “Gelita Exercised Reasonable Care to Prevent
    
    and Correct Promptly Any Harassing Behavior,” defendants argued that
    
    “[e]ven though Plaintiff was no longer with Gelita at the time of his
    
    Complaint, in response to his charge, the Company investigated his
    
    allegations, discharged one employee, and disciplined three others.”
    
          On appellate review, defendants continue to maintain they are not
    
    relying on the Horvatich investigation.      They assert their affirmative
    
    defense is not related to the actions Gelita took in response to Fenceroy’s
    
    complaint.      Instead, defendants argue their defense is that Gelita
    
    maintained a workplace reporting procedure and training process to
    
    prevent   and     correct   workplace    harassment   and   that   Fenceroy
    
    unreasonably used the procedure to correct the alleged harassment
    
    before he left his employment.
    
          Defendants primarily rely on Treat, to support their position. In
    
    Treat, three plaintiffs brought suit against their employer, Kelley, alleging
    
    sex discrimination in violation of Title VII.   
    2009 WL 1543651
    , at *1.
    
    During discovery, plaintiffs requested a number of documents, including
    
    notes taken by Kelley’s counsel in response to plaintiffs’ administrative
    
    charge, drafts of counsel’s administrative position statements and legal
    
    memoranda, and emails and faxes between counsel and employees sent
    
    in preparation of Kelley’s administrative position statement. Id. at *1–2.
    
    Plaintiffs argued Kelley raised the Faragher–Ellerth affirmative defense
    
    and, as such, waived all privilege over the presuit investigation. Id. at
    
    *12. However, the court concluded “it ha[d] been fleshed out during the
    
    discovery process that Kelley’s defense is not that it acted reasonably
    
    upon learning of the Plaintiffs’ complaints, but rather that the Plaintiffs
                                         16
    
    did not take advantage of Kelley’s policies in reporting harassment and
    
    discrimination.”   Id. at *13.   Because the company was “not actually
    
    relying on the adequacy of any investigation to support an affirmative
    
    defense, Kelley has not placed outside counsel's investigation at issue.”
    
    Id.
    
          The critical point in Treat was the existence of a trial court record
    
    to show the employer took a position that the Faragher–Ellerth defense
    
    would only be supported by evidence that it had antidiscrimination
    
    policies and reporting procedures in place at the time of the alleged
    
    discriminatory conduct and that the plaintiffs failed to take advantage of
    
    the procedures. The employer in Treat made it clear that it would not
    
    offer any evidence of its actions after the plaintiffs made their complaints.
    
          Treat underscores that an employer does not impliedly waive an
    
    attorney–client privilege merely by using an attorney to investigate a
    
    complaint of workplace discrimination but, rather, by subsequently
    
    relying on the investigation to prove a Faragher–Ellerth defense asserted
    
    in a lawsuit.   In this case, as in Harding, Gelita clearly relied on the
    
    investigation as proof of its affirmative defense during the administrative
    
    proceeding.     Additionally, unlike in Treat, defendants relied on the
    
    investigation as proof of their affirmative defense during summary
    
    judgment proceedings.
    
          Importantly, contrary to defendants’ assertion on appeal, corrective
    
    measures taken by an employer in response to a complaint by an
    
    employee made after the employee has left the employment may be
    
    relevant to the reasonableness of care exercised by an employer to prove
    
    a Faragher–Ellerth defense. The Faragher–Ellerth defense was crafted in
    
    order to provide a complete defense to vicarious liability for employers
    
    who have demonstrated a commitment to abiding by antidiscrimination
                                       17
    
    statutes.   Through this defense, employers have an opportunity to
    
    demonstrate they are the type of employer that takes discrimination
    
    seriously and affirmatively works to prevent and correct it. Generally, if
    
    an employee fails to notify the employer of wrongdoing, courts have
    
    found that such failure, coupled with adequate preventative policies, is
    
    sufficient to prevail in the defense. Faragher, 524 U.S. at 807–08, 118
    
    S. Ct. at 2293.
    
          However, defendants conflate what is necessary to prevail in the
    
    defense in certain instances with what is relevant to the defense.     All
    
    evidence relating to an employer’s steps to prevent and correct
    
    harassment goes toward proving that they are the type of company that
    
    deserves a complete defense to vicarious liability.     Parties can, and
    
    frequently do, bolster their positions with evidence beyond what is
    
    minimally necessary to succeed. The rules of discovery reach all offered
    
    evidence, not merely the minimum evidence necessary to prevail on a
    
    claim or affirmative defense. Here, defendants bolstered their affirmative
    
    defense beyond what was necessary, in an effort to conclusively prove
    
    they are the type of company that deserves a complete defense to
    
    liability. This choice was entirely their own. If defendants wish to use
    
    Horvatich’s investigation as evidence of their commitment to abiding by
    
    antidiscrimination statutes, plaintiff may not be kept from disputing that
    
    evidence, especially at the summary judgment stage.
    
          The critical question presented when discovery of an attorney
    
    investigation is sought in a lawsuit based on workplace discrimination is
    
    whether the employer intends to rely on the investigation as evidence to
    
    help prove the Faragher–Ellerth defense.       When confronted with a
    
    discovery request, the employer controls the outcome of the waiver issue.
    
    The employer may decide to simply refrain from referencing the
                                         18
    
    investigation in the civil action, in which case it will remain confidential.
    
    Or, the employer may choose to explicitly cabin its defense to the period
    
    of plaintiff’s employment, in which case any reference to the investigation
    
    will be met with a relevance objection rather than a notice for deposition.
    
    Of course, the employer may also choose to offer the investigation as
    
    evidence of its proper corrective actions and waive any privilege over the
    
    investigation.    The employer’s decision must be clear because it will
    
    become the basis for the court’s ruling.
    
          Defendants plainly relied on Horvatich’s investigation to support
    
    their affirmative defense in their motion for summary judgment.          The
    
    district court, therefore, did not abuse its discretion in finding
    
    defendants waived attorney–client privilege over the investigation.
    
          Our law permits a party who has waived attorney–client privilege to
    
    retract the waiver and reinstate the privilege. See Squealer Feeds, 530
    
    N.W.2d at 685. On appellate review, we are reviewing the district court’s
    
    decision based on the record made before the court.             Defendants’
    
    position on appeal that the investigation is not “at issue” with respect to
    
    the Faragher–Ellerth defense is consistent with their position before the
    
    district court.    But, this position is not a clear declaration by the
    
    employer that an investigation into a complaint will not be relied upon to
    
    help prove the Faragher–Ellerth defense. Instead, it is a legal assertion,
    
    not entirely correct, that the investigation would not be relevant to the
    
    Faragher–Ellerth defense. If defendants wish to retract their waiver, they
    
    may make a new record before the district court that clearly and
    
    unequivocally establishes the investigation will not be used to support
    
    the defense.
    
          B. Work Product.      Although the district court did not abuse its
    
    discretion with respect to waiver of attorney–client privilege, the issue
                                          19
    
    remains whether plaintiff may discover Horvatich’s work product from
    
    the 2013 investigation.
    
          Parties may only discover “documents and tangible things” that
    
    were prepared by another party “in anticipation of litigation or for trial,”
    
    if the requesting party demonstrates a “substantial need of the materials”
    
    and is “unable without undue hardship to obtain the substantial
    
    equivalent of the materials by other means.” Iowa R. Civ. P. 1.503(3).
    
    However, courts must protect against disclosing “mental impressions,
    
    conclusions, opinions, or legal theories of an attorney.” Id. Iowa work-
    
    product protection “resembles Federal Rule of Civil Procedure 26(b)(3),
    
    ‘and the history and cases under the federal rule provide guidance in
    
    interpreting the Iowa counterpart.’ ” Iowa Ins. Inst. v. Core Grp. of Iowa
    
    Ass’n for Justice, 
    867 N.W.2d 58
    , 70 (Iowa 2015) (quoting Ashmead v.
    
    Harris, 
    336 N.W.2d 197
    , 199 (Iowa 1983), abrogated on other grounds by
    
    Wells Dairy, 690 N.W.2d at 48). Although we have not yet considered
    
    implied waiver of work-product protection, we have previously assessed
    
    subject   matter   waiver   of   work-product   protection.   See   Exotica
    
    Botanicals, Inc. v. Terra Int’l, Inc., 612 N.W.2d at 801, 807–09 (Iowa 2000)
    
    (concluding specific content of attorney’s testimony did not amount to
    
    waiver of work-product protection).
    
          Courts in other jurisdictions that have adopted the implied
    
    at-issue waiver standard within the Faragher–Ellerth context have also
    
    concluded a party waives work-product protection over investigation
    
    documents if the party relies on the investigation to support its
    
    affirmative defense.      See, e.g., Koss v. Palmer Water Dep’t, 
    977 F. Supp. 2d 28
    , 31 (D. Mass. 2013) (“Defendants’ affirmative defense
    
    waives the attorney-client privilege and work-product protection for the
    
    bulk of the documents submitted for in camera review . . . .”); Reitz v.
                                          20
    
    City of Mt. Juliet, 
    680 F. Supp. 2d 888
    , 894 (M.D. Tenn. 2010)
    
    (concluding “the City waived its privilege and work-product protection
    
    not by disclosing Berexa’s report, but by making tactical use of it in this
    
    litigation” in support of a Faragher–Ellerth affirmative defense); McGrath
    
    v. Nassau Cty. Health Care Corp., 
    204 F.R.D. 240
    , 246 (E.D.N.Y. 2001)
    
    (“[W]hile the Court finds the waiver of some core work product difficult to
    
    sustain, it agrees that NHCC’s invocation of the Faragher–Ellerth defense
    
    has waived the work product privilege under the facts of this case. By
    
    weighing fairness concerns against the purpose of the work product
    
    privilege, the Court finds that it would be unjust to allow NHCC to invoke
    
    the Faragher–Ellerth defense under these facts while allowing it to protect
    
    the very documents it relies on to assert that defense.”).
    
          We agree that when a party places an investigation at issue by
    
    relying upon it in support of the Faragher–Ellerth affirmative defense, any
    
    nonopinion work-product protection over that investigation is necessarily
    
    waived. Like attorney–client privilege, a party may not use work-product
    
    protection to shield documents from discovery while at the same time
    
    relying upon those same documents to support their claim.                 This is
    
    especially true in the context of the Faragher–Ellerth affirmative defense.
    
    An employer may not point to the thoroughness of an investigation to
    
    demonstrate compliance with the ICRA while at the same time shield the
    
    plaintiff from disputing the investigation’s thoroughness.
    
          Of   course,     an   attorney–investigator’s     mental       impressions,
    
    conclusions,   opinions,    and   legal    theories   remain    sheltered      from
    
    discovery. Although an employer opens the door to discovery of the facts
    
    and process of its investigation by relying upon it in support of its
    
    affirmative defense, opinion work product is not germane to the objective
    
    reasonableness    of   an   employer’s     investigation.      See    Reitz,   680
                                          21
    
    F. Supp. 2d at 895 (“Sections of the interview memoranda that reflect the
    
    lawyers’ mental impressions, opinions, conclusions, judgments, or legal
    
    theories are not relevant to the plaintiff’s remaining retaliation claim, nor
    
    will they lead to the discovery of relevant information. This ‘opinion’ work
    
    product has no bearing on the issues of Reitz’s work performance, the
    
    discipline she faced before filing her internal complaint, or any other
    
    aspect of Reitz’s current case.”). We therefore find the district court did
    
    not abuse its discretion in concluding defendants waived work-product
    
    protection over Horvatich’s investigation notes.        Unless defendants
    
    retract their waiver, they must produce all of Horvatich’s nonopinion
    
    work product that resulted in the ICRC position statement.
    
          C. Third-Party Waiver.        Plaintiff argues that even if defendants
    
    did not waive attorney–client privilege over the contents of the
    
    investigation by raising the affirmative defense, they nevertheless waived
    
    privilege over the desired information by conducting employee interviews
    
    in the presence of a third party.
    
          1. Error preservation. As an initial matter, the defendants contest
    
    whether this issue is preserved for appeal.      Generally, an issue is not
    
    preserved unless “a party raises an issue and the district court rules on
    
    it.” State ex rel. Miller v. Vertrue, Inc., 
    834 N.W.2d 12
    , 20 (Iowa 2013).
    
    Here, plaintiff argued in his resistance to defendants’ motion for
    
    protective order:
          By conducting the investigation in the presence of a third
          party who was not representing Gelita but was actually an
          adversary to Gelita’s interests, Gelita waived and is estopped
          from claiming attorney-client and work product privileges
          apply to her communications with them. Ms. Horvatich’s
          thought processes and communications were revealed to the
          third party by her actions, questions and deeds at the time
          of her investigation on behalf of Gelita. To the extent there
          was a privilege, Gelita waived it by the presence of the union.
                                         22
    
    Plaintiff plainly raised the issue at the district court level. However, the
    
    district court did not rule on the third-party waiver issue, as it concluded
    
    the affirmative defense waived attorney–client privilege and work-product
    
    protections. Nevertheless, “a successful party need not cross-appeal to
    
    preserve error on a ground urged but ignored or rejected by the district
    
    court.”   Venard v. Winter, 
    524 N.W.2d 163
    , 165 (Iowa 1994).          Thus,
    
    plaintiff sufficiently preserved the issue of whether the presence of the
    
    union representative waived privilege over the investigation.
    
          2. Merits. Communications that could be cloaked by privilege may
    
    nevertheless be discoverable if made in the presence of, or disclosed to, a
    
    third party.   See State v. Romeo, 
    542 N.W.2d 543
    , 548 (Iowa 1996).
    
    However, when the presence of a third party is “essential for the
    
    rendition of a legal opinion, the         presence of such      persons at
    
    attorney-client conferences does not destroy privilege otherwise existing.”
    
    Tausz v. Clarion–Goldfield Cmty. Sch. Dist., 
    569 N.W.2d 125
    , 127 (Iowa
    
    1997).
    
          Plaintiff asks that we go well beyond the parameters of third-party
    
    waiver and conclude a third party’s presence during investigatory
    
    interviews waives privilege over the whole of the investigation. This we
    
    decline to do. Horvatich conducted several employee interviews as part
    
    of her investigation into the merits of plaintiff’s administrative charge. In
    
    each interview, she was joined by Tolsma and union representative
    
    Hoswald.   There is no evidence in the record to demonstrate Hoswald
    
    was privy to any internal decision-making or communications about the
    
    direction or disposition of the investigation.         As such, the only
    
    communications that could potentially be discoverable are statements
    
    made in Hoswald’s presence during employee interviews.
                                          23
    
          During discovery, defendants produced all of the investigation’s
    
    witness statements.      As well, plaintiff had the opportunity to depose
    
    employees who were interviewed and inquire into the nature and content
    
    of their interviews.     Accordingly, we need not reach the question of
    
    whether the presence of a union representative during an internal
    
    investigation waives attorney–client privilege, as defendants have not
    
    claimed   privilege    over   any   communications   made   in   the   union
    
    representative’s presence.
    
          D. Subject Matter Waiver. Plaintiff further argues, for the first
    
    time on appeal, that even if defendants did not waive attorney–client
    
    privilege, employee depositions revealed “Ms. Horvatich’s thought process
    
    and communications” during the investigation, and as such, the
    
    employee testimony amounts to a subject matter waiver of the contents
    
    of the investigation.    Because plaintiff did not raise this issue to the
    
    district court, it has not been preserved for our review.
    
          IV. Conclusion.
    
          We affirm the district court order denying defendants’ protective
    
    order. The case is remanded to the district court for further proceedings
    
    consistent with this opinion.
    
          DISTRICT COURT ORDER AFFIRMED AND CASE REMANDED.
    
          All justices concur except Waterman, Mansfield, and Zager, JJ.,
    
    who dissent.
                                           24
                                          #16–0775, Fenceroy v. Gelita USA, Inc.
    WATERMAN, Justice (dissenting).
    
             I respectfully dissent and would hold the district court abused its
    
    discretion by compelling the deposition of Gelita’s trial counsel Ruth
    
    Horvatich and production of her notes prepared in anticipation of
    
    litigation.
    
             First, Gelita never waived its attorney–client privilege or work-
    
    product protection by pleading or arguing the Faragher–Ellerth defense in
    
    district court. That defense was based solely on Mr. Fenceroy’s failure to
    
    use Gelita’s reporting procedures during his employment, before he
    
    retired and filed his discrimination complaint. The majority, contrary to
    
    precedent, finds that Gelita impliedly waived the confidentiality of its
    
    lawyer’s private notes and client communications by including this
    
    sentence in its lengthy brief supporting its motion for summary
    
    judgment: “Even though Plaintiff was no longer with Gelita at the time of
    
    his Complaint, in response to his charge, the Company investigated his
    allegations, discharged one employee, and disciplined three others.”         I
    
    disagree that sentence constitutes an implied waiver. Gelita never relied
    
    on confidential attorney–client communications in asserting its defenses.
    
    Gelita was not using the attorney–client privilege as both a sword and
    
    shield and never blocked proper discovery into a matter it placed at
    
    issue.
    
             Second, even if it was a waiver, Gelita clearly has retracted it. The
    
    majority questions that a retraction has occurred but allows Gelita the
    
    opportunity to retract the waiver on remand. I think this is unnecessary
    
    based on a fair reading of the record and Gelita’s appellate briefs.
    
             Third, the majority also misses the opportunity to adopt the
    
    showing required under Shelton v. American Motors Corp., 
    805 F.2d 25
    
    1323, 1327 (8th Cir. 1986), and confirm that compelling depositions of
    
    opposing trial counsel during litigation should be a rare last resort, even
    
    when information might be obtained that is not subject to a privilege.
    
    This aspect of the court’s ruling could lead to a flurry of depositions of
    
    opposing counsel and a corresponding decline in civility in the Iowa bar.
    
    Frequently, both plaintiff’s counsel and defendant’s counsel have various
    
    nonprivileged interactions with others in the course of working on a case.
    
    The majority leaves the door open to each side deposing the other on
    
    these interactions.   I would not do this.      Fenceroy is not entitled to
    
    depose Gelita’s trial attorney Horvatich under Shelton.
    
         I. Gelita Never Impliedly Waived Its Attorney–Client Privilege
    or Work-Product Protection.
    
          The majority makes it too easy to find an implied waiver of the
    
    attorney–client privilege and work-product doctrine. There was no such
    
    waiver here.    Gelita never listed attorney Horvatich as a witness.          See
    
    Squealer Feeds v. Pickering, 
    530 N.W.2d 678
    , 684–85 (Iowa 1995),
    
    abrogated on other grounds by Wells Dairy, Inc. v. Am. Indus.
    
    Refrigeration, Inc., 
    690 N.W.2d 38
    , 48 (Iowa 2004). Gelita never disclosed
    
    any   privileged   communications   from      Horvatich    in    responding    to
    
    Fenceroy’s claims.    See Miller v. Cont’l Ins., 
    392 N.W.2d 500
    , 504–05
    
    (Iowa 1986).    Nor did Gelita rely on Horvatich’s 2013 investigation to
    
    support its Faragher–Ellerth defense.        Rather, Gelita made clear this
    
    defense is based on Fenceroy’s failure to utilize Gelita’s complaint and
    
    antidiscrimination reporting policy and procedures. It is undisputed that
    
    Fenceroy’s     employment   ended   before    he   filed   his   discrimination
    
    complaint. Gelita did not place Horvatich’s legal advice at issue through
    
    fleeting references to her investigation conducted after Fenceroy retired
    
    and the subsequent termination or discipline of several employees. The
                                         26
    
    cases relied on by the majority are distinguishable for that reason—in
    
    the cases finding an implied waiver, the employer was relying on the
    
    reasonableness of its counsel’s investigation conducted while the plaintiff
    
    was still employed. Not so here.
    
           The majority primarily relies on Harding v. Dana Transport, Inc.,
    
    
    914 F. Supp. 1084
     (D.N.J. 1996), while Gelita relies on cases such as
    
    Treat v. Tom Kelley Buick Pontiac GMC, Inc., No. 1:08–CV–173, 
    2009 WL 1543651
     (N.D. Ind. June 2, 2009). Treat is on point while Harding is
    
    not.
    
           In Harding, two employees filed an administrative complaint
    
    alleging sexual discrimination; one employee filed her complaint while
    
    still employed, unlike Fenceroy.     914 F. Supp. at 1087 & n.2.           The
    
    employer hired outside counsel to investigate their allegations.         Id. at
    
    1088. The employees later resigned and filed a Title VII claim. Id. at
    
    1087 & n.2.    In the Title VII lawsuit, the employer’s counsel admitted
    
    that he intended to use the investigation as evidence the employer acted
    
    reasonably. Id. at 1088. The defense attorney stated,
    
           Dana is not submitting any of the specifics of [the attorney’s]
           investigation as a basis of defense in this matter. Dana
           merely intends to offer the fact that [the attorney] did
           conduct an investigation as part of his representation of
           Dana in response to allegations filed with the Division on
           Civil Rights. Whether this investigation, coupled with other
           actions taken on behalf of Dana in the context of the facts in
           this case, constitutes evidence of reasonable conduct on the
           part of Dana is a jury question, but does not compel
           disclosure of the specifics of [the attorney’s] investigation.
    
    Id. at 1093 (emphasis added).         The Harding court concluded the
    
    employer had put counsel’s investigation at issue, waiving its attorney–
                                               27
    
    client privilege. Id. at 1096. Other decisions relied on by the majority
    
    are distinguishable for the same reasons. 1
    
           By contrast, in Treat, three employees filed an administrative
    
    complaint after their employment ended, as did Fenceroy.                      
    2009 WL 1543651
    , at *1, *13. The employer hired outside counsel to conduct an
    
    investigation. Id. at *6. The employer used the attorney’s investigation
    
    during the EEOC proceeding but did not rely on the investigation in
    
    district court. Id. at *7, *13. The Treat court distinguished Harding and
    
    found that the investigation was not put at issue and was not
    
    discoverable. Id. at *12–13. The Treat court reasoned,
    
           [I]t has been fleshed out during the discovery process that
           Kelley’s defense is not that it acted reasonably upon learning
           of the Plaintiffs’ complaints, but rather that the Plaintiffs did
           not take advantage of Kelley’s policies in reporting
           harassment and discrimination. In other words, because the
           Plaintiffs allegedly did not report their complaints during
           their employment, there is no internal investigation of any
           complaints to rely upon; the only investigation (conducted by
           outside counsel) was for the purpose of preparing for
           litigation, once the EEOC charges were filed. . . . Thus,
           because Kelley is not actually relying on the adequacy of any
           investigation to support an affirmative defense, Kelley has not
           placed outside counsel’s investigation at issue.
    
    Id. at *13 (emphasis added). That is what we have here.
    
           Other courts have likewise rejected implied waiver claims under
    
    the Faragher-Ellerth defense when, as here, the employer confirms it is
    
    
            1See Angelone v. Xerox Corp., No. 09–CV–6019, 
    2011 WL 4473534
    , at *1–3
    
    (W.D.N.Y. Sept. 26, 2011) (concluding that documents relating to internal investigation
    completed before employee filed an administrative complaint were discoverable because
    employer invoked the Faragher–Ellerth defense, but recognizing that documents created
    after the conclusion of the internal investigation were not discoverable as long as the
    company does “not refer to or rely on these . . . documents or the adequacy of [the later]
    investigation”); Walker v. County of Contra Costa, 
    227 F.R.D. 529
    , 535 (N.D. Cal. 2005)
    (finding that the employer intended to rely on attorney’s investigation as a defense and
    therefore “must turn over [the attorney’s] report as it pertains to the pre-litigation
    investigation into [the employee’s] claim of discrimination”).
                                           28
    
    not relying on the lawyer’s investigation but rather the employee’s failure
    
    to use the employer’s complaint procedures.        See, e.g., Robinson v.
    
    Vineyard Vines, LLC, 15 Civ. 4972 (VB)(JCM), 
    2016 WL 845283
    , at *5
    
    (S.D.N.Y. Mar. 4, 2016) (“Given these representations by Defendants’
    
    counsel, I find that Defendants have not waived any privilege as to the
    
    Investigative Documents by asserting the [Faragher–Ellerth] Defense.”);
    
    Geller   v.   N. Shore   Long Island   Jewish   Health   Sys.,   No. CV 10–
    
    170(ADS)(ETB), 
    2011 WL 5507572
    , at *4 (E.D.N.Y. Nov. 9, 2011) (denying
    
    motion to compel because “defendants’ counsel has affirmatively
    
    represented to the Court that defendants have no intention of ‘using the
    
    investigation to avoid liability’ ”); City of Petaluma v. Super. Ct., 
    204 Cal. Rptr. 3d 196
    , 201–02, 207 (Ct. App. 2016) (holding there was no
    
    waiver of attorney–client privilege or work-product protection when the
    
    employer was not relying on the postemployment investigation but
    
    instead was arguing that the employee “unreasonably failed to take
    
    advantage of any preventative or corrective opportunities”); see also
    
    McGrath v. Nassau Cty. Health Care Corp., 
    204 F.R.D. 240
    , 244–45
    
    (E.D.N.Y. 2001) (rejecting the argument “that employers put any post-
    
    harassment investigation conducted at issue simply by invoking the
    
    Faragher–Ellerth defense” because the proposition “would eviscerate both
    
    the attorney-client privilege and the work product doctrine” while
    
    concluding that this employer did put the sufficiency of its investigation
    
    at issue); cf. EEOC v. Rose Casual Dining, L.P., No. Civ.A. 02–7485, 
    2004 WL 231287
    , at *3–4 (E.D. Pa. Jan. 23, 2004) (concluding that plaintiff
    
    was entitled to documents related to the employer’s internal investigation
    
    because the employer “raised the reasonableness of its internal
    
    investigation as an affirmative defense to [p]laintiff’s allegations” but
                                         29
    
    denying plaintiff’s motion to compel documents generated from second
    
    investigation that began only after the plaintiff had been terminated).
    
          As the great weight of authority shows, the majority errs by
    
    concluding Gelita waived its attorney–client privilege and work-product
    
    protection merely by pleading the Faragher–Ellerth defense and referring
    
    to its postemployment investigation in the agency proceedings and
    
    summary judgment filings.           In Exotica Botanicals, Inc. v. Terra
    
    International, Inc., we held that a lawyer’s general testimony regarding
    
    his investigation in prior litigation and related communications with an
    
    adverse party did not waive work-product protection. 
    612 N.W.2d 801
    ,
    
    809 (Iowa 2000). We concluded the district court abused its discretion
    
    by compelling production of documents constituting work product. Id.
    
    We emphasized the adverse consequences that would result if courts
    
    could find a waiver of work-product protections merely because the
    
    lawyer “discuss[ed] the general nature of . . . information” relevant to
    
    liability with an opposing party:
    
          It was [attorney] Kalafut’s duty to communicate with
          Du Pont regarding the Benlate claims and to evaluate Terra’s
          liability in the matter. But to say that Kalafut waived his
          work product privilege concerning information that might
          potentially absolve Terra of liability, simply by discussing the
          general nature of that information with Du Pont, would
          mean that an attorney could never discuss the positive
          aspects of his or her case with opposing counsel for fear that
          such discussion would amount to a waiver of the work
          product privilege as to all documents supporting that
          position. If this were the case, settlement negotiations and
          communication between the parties in general would break
          down.       Such a result would be inconsistent with a
          commonsense application of the work product doctrine and
          certainly inconsistent with the goal of resolving cases in a
          timely manner.
    
    Id.
                                          30
    
          The majority’s decision today conflicts with Exotica Botanicals.
    
    Iowa lawyers should not have to worry that they will waive privilege or
    
    work-product     protections    simply      by   general   references   to   their
    
    investigation or their client’s position.
    
          II. Gelita Already Retracted Any Alleged Waiver.
    
          The majority correctly acknowledges that a party who waived the
    
    attorney–client privilege by asserting a particular defense can retract the
    
    waiver. See Squealer Feeds, 530 N.W.2d at 685. In Squealer Feeds, an
    
    employee alleged the workers’ compensation insurer acted in bad faith.
    
    Id. at 680, 683.     The defendant asserted a defense of the advice of
    
    counsel from the attorney who defended the workers’ compensation
    
    claim and listed that attorney as an expert witness for trial. See id. at
    
    680–81.    We held the defendant thereby waived the attorney–client
    
    privilege as to his advice on that issue, but we also made clear the
    
    defendant could undo the waiver by withdrawing the lawyer as a trial
    
    witness. Id. at 684–85 (noting a withdrawal of the witness designation
    
    would “reestablish the attorney–client privilege”). Gelita never listed its
    
    outside counsel, Horvatich, as a witness. In any event, Gelita has clearly
    
    retracted any implied waiver.
    
          In its opening brief on appeal, Gelita confirmed that it was not
    
    relying on its attorney’s investigation to support a Faragher–Ellerth
    
    defense:
    
          In this case, the Faragher–Ellerth defense is based on
          Fenceroy’s unreasonable failure to take advantage of
          preventative and corrective opportunities available during
          his employment. Defendants are not relying upon any
          investigation conducted by defense counsel after Fenceroy
          filed his discrimination charge. Those complaints were not
          made by Fenceroy during his employment and therefore, the
          adequacy of that investigation and remedial action
          undertaken by the Company are not “at issue” nor are they
          part of Gelita’s Faragher–Ellerth affirmative defense.
                                        31
    
    Appellants’ Final Br. 14. Gelita made the same point in its reply brief:
    
          Defendants’ Faragher–Ellerth defense is not that it conducted
          a reasonable investigation after receiving the ICRC charge,
          but that Plaintiff failed to report the alleged conduct during
          his employment and thus failed to take advantage of the
          Company’s     policies     on   reporting    harassment   and
          discrimination. Any investigation and remedial response
          undertaken after Complainant left his employment and filed
          his ICRC charge is simply not necessary to Defendant’s
          Faragher–Ellerth defense and, as such, is not at issue.
    
    Appellants’ Final Reply Br. 2–3. Because Gelita has already withdrawn
    
    any alleged implied waiver, the district court on remand should grant
    
    Gelita’s motion for protective order.    The majority seemingly agrees in
    
    principle, but wants Gelita to put its withdrawal on the record when this
    
    case returns to district court. I do not think that is needed, although in
    
    the long run it should not make a difference.
    
          III. Fenceroy Failed to Show He Was Entitled to Depose
    Gelita’s Trial Counsel.
    
          The majority opens the door to compelling the depositions of
    
    opposing counsel in pending lawsuits.           Compelled depositions of
    
    opposing counsel have long been disfavored. See Hickman v. Taylor, 
    329 U.S. 495
    , 511–13, 
    67 S. Ct. 385
    , 393–95 (1947). We previously allowed a
    
    deposition of plaintiffs’ counsel only after the plaintiffs waived attorney–
    
    client privilege by testifying about their reliance on his specific legal
    
    advice to them on the statute of limitations. Miller, 392 N.W.2d at 505.
    
    We framed the issue as “whether plaintiffs may disclose a privileged
    
    attorney communication . . . and then invoke a privilege to prevent
    
    disclosure of other communications by the attorney about the same
    
    matter.”   Id. at 504.   We concluded the “voluntary disclosure of the
    
    content of a privileged communication constitutes waiver as to all other
    
    communications on the same subject.” Id. at 504–05. That is not what
                                        32
    
    Gelita did. Gelita disclosed no privileged communications by Horvatich
    
    to support its Faragher–Ellerth defense. Miller is inapposite.
    
          Two years after Miller, the United States Court of Appeals for the
    
    Eighth Circuit in Shelton addressed the circumstances under which the
    
    district court may compel the deposition of the opposing party’s trial
    
    counsel. 805 F.2d at 1327. The Shelton court required a showing that
    
          (1) no other means exist to obtain the information than to
          depose opposing counsel; (2) the information sought is
          relevant and nonprivileged [or the privilege has been waived];
          and (3) the information is crucial to the preparation of the
          case.
    
    Id. (citation omitted).   We should follow Shelton, and I would adopt it
    
    now. Because Fenceroy cannot satisfy this test, the district court abused
    
    its discretion by compelling the deposition of Horvatich.
    
          The Shelton rule has been widely adopted by state and federal
    
    courts as the standard for determining whether a litigant may compel the
    
    deposition of opposing trial counsel. Id.; Nationwide Mut. Ins. v. Home
    
    Ins., 
    278 F.3d 621
    , 628 (6th Cir. 2002); Thiessen v. Gen. Elec. Capital
    
    Corp., 
    267 F.3d 1095
    , 1112 & n.15 (10th Cir. 2001) (citing Boughton v.
    
    Cotter Corp., 
    65 F.3d 823
    , 830 (10th Cir. 1995)); 3M Co. v. Engle, 
    328 S.W.3d 184
    , 188 & n.15 (Ky. 2010) (citing McMurry v. Eckert, 
    833 S.W.2d 828
    , 830 (Ky. 1992)); Club Vista Fin. Servs. v. Eighth Judicial Dist. Ct.,
    
    
    276 P.3d 246
    , 250 (Nev. 2012) (en banc); Estate of Mikulski v. Cleveland
    
    Elec. Illuminating Co., No. 96748, 
    2012 WL 504505
    , at *4 (Ohio Ct. App.
    
    Feb. 16, 2012); Voorhees Cattle Co., LLP v. Dakota Feeding Co., LLC, 
    868 N.W.2d 399
    , 407 (S.D. 2015).
    
          The parties briefed and argued Shelton here.          Yet the majority,
    
    without expressly accepting or rejecting Shelton, declines to address the
    
    showing required to depose a party-opponent’s trial counsel during a
                                          33
    
    lawsuit. The majority assumes Gelita will reconfirm its retraction of any
    
    alleged reliance on Horvatich’s investigation when the case returns to
    
    district court and that the district court will then preclude her
    
    deposition. Presumably so. The problem is that the majority today is
    
    affirming the district court’s order compelling Horvatich’s deposition
    
    based on the existing district court record. The majority thereby blesses
    
    the overly aggressive practice of compelling the deposition of opposing
    
    trial counsel without a proper showing of necessity.
    
          Fenceroy cannot meet any of the three Shelton requirements.
    
    First, Gelita already provided Fenceroy with the statements taken from
    
    the witnesses Horvatich interviewed, and Fenceroy deposed those
    
    witnesses. Fenceroy could explore why Gelita terminated one employee
    
    and disciplined others by deposing the decisionmaker, Jeff Tolsma,
    
    Gelita’s Vice President of Business Support.        Fenceroy has not shown
    
    why   those   sources     of    information   are   inadequate,   much   less
    
    demonstrated that a deposition of Horvatich is his only means to obtain
    
    discovery on Gelita’s investigation and resulting actions.          A mere
    
    allegation of need is insufficient. Cf. Iowa R. Civ. P. 1.503(3); Squealer
    
    Feeds, 530 N.W.2d at 688–89 (requiring party seeking work product to
    
    demonstrate the information could not be obtained by reviewing records
    
    already produced, depositions of the company decision-maker, or other
    
    nonprivileged sources).        Second, Horvatich’s communications remain
    
    privileged, with any alleged implied waiver retracted.       Third, Fenceroy
    
    has not shown that Horvatich’s testimony is crucial or even relevant to
    
    his case.
    
          I fear that the majority’s failure to clarify the showing required to
    
    depose opposing trial counsel could lead to increasingly aggressive
    
    litigation tactics that undermine the professionalism and civility of our
                                         34
    
    trial bar and needlessly increase the costs and burdens of pretrial
    
    discovery.
    
          Going forward, I also fear today’s decision will have a chilling effect
    
    on the routine practice of retaining outside counsel to investigate
    
    discrimination claims.    If the employer’s lawyer can be deposed by
    
    plaintiff merely because the employer pleads a Faragher–Ellerth defense,
    
    will two different law firms have to be retained—one to investigate and
    
    the other to try the case? Will employers limit what they tell their lawyer
    
    who may be compelled to testify by the litigation adversary? Or will some
    
    employers be reluctant to retain a lawyer who might be compelled to
    
    provide adverse testimony?      Will such employers lose the benefit of
    
    sound legal advice that would otherwise help them improve compliance
    
    with employment laws?
    
          Our legal system venerates the attorney–client privilege for vitally
    
    important reasons:
    
          The attorney–client privilege is the oldest of the privileges for
          confidential communications known to the common law. Its
          purpose is to encourage full and frank communication
          between attorneys and their clients and thereby promote
          broader public interests in the observance of law and
          administration of justice.     The privilege recognizes that
          sound legal advice or advocacy serves public ends and that
          such advice or advocacy depends upon the lawyer’s being
          fully informed by the client.
    
    Upjohn Co. v. United States, 
    449 U.S. 383
    , 389, 
    101 S. Ct. 677
    , 682
    
    (1981) (citation omitted). Discouraging use of lawyers will undermine the
    
    primary purpose of our civil rights laws—to avoid discrimination in the
    
    workplace. See Faragher v. City of Boca Raton, 
    524 U.S. 775
    , 805–06,
    
    
    118 S. Ct. 2275
    , 2292 (1998) (“Although Title VII seeks ‘to make persons
    
    whole for injuries suffered on account of unlawful employment
    
    discrimination,’ its ‘primary objective,’ like that of any statute meant to
                                        35
    
    influence primary conduct, is not to provide redress but to avoid harm.”
    
    (quoting Albermarle Paper Co. v. Moody, 
    422 U.S. 405
    , 417–18, 
    95 S. Ct. 2362
    , 2371–72 (1975))); cf. Haskenhoff v. Homeland Energy Sols., LLC,
    
    
    897 N.W.2d 553
    , 578 (Iowa 2017) (“Employers would lose a key incentive
    
    to take corrective action if they were automatically liable for harassment
    
    whether or not they put a stop to it.”). We should encourage employers
    
    to retain counsel to investigate, prevent, and help remedy discrimination.
    
    The majority today instead discourages the use of employment lawyers
    
    by allowing adverse litigants to easily invade the confidentiality so
    
    important to the attorney–client relationship.
    
          For these reasons, I respectfully dissent.
    
          Mansfield and Zager, JJ., join this dissent.