Should HR Investigations Be Recorded? Privilege Risks in the Age of Teams and Zoom

Many human resources (HR) teams have grown accustomed to recording workplace interviews, whether through Teams, Zoom, or other tools that automatically capture audio and generate transcripts. While recording can feel efficient and even protective, it could create legal risk if the investigation later becomes the subject of litigation. In particular, recording interviews can significantly increase the likelihood that the investigation will be discoverable, even where it is conducted under the direction of counsel.

At a high level, investigations could potentially be protected from disclosure under various legal privileges, such as the attorney-client privilege or the attorney work-product doctrine. The attorney‑client privilege depends on maintaining the confidentiality of communications made for the purpose of obtaining legal advice. Courts generally apply the attorney-client privilege to investigation materials where the primary purpose is to provide legal advice. However, where an investigation is conducted as part of the ordinary course of business or when required by state or federal regulations (e.g., Occupational Safety and Health Administration (OSHA) investigations), courts are more likely to find that the attorney-client privilege does not apply. Courts also are likely to find that privileges are waived when an employer relies upon the facts of the investigation to defend a harassment claim.     

Even when an investigation is performed by outside counsel or at outside counsel’s direction, recording interviews complicates that analysis. Modern platforms frequently store recordings and transcripts on third‑party servers, and those materials can be shared, accessed, or processed in ways that undermine a claim of confidentiality. As a result, plaintiffs’ counsel can challenge whether recorded interviews were truly maintained as privileged communications, particularly where recordings are widely accessible within the organization or pass through external vendors.

Recording also changes the nature of what the company creates during an investigation. Courts have long distinguished between legal analysis and summaries prepared by counsel (more likely to be protected) and verbatim witness statements (less likely to be protected). When an interview is recorded or transcribed, it effectively becomes a detailed factual record rather than a lawyer’s work product. That distinction matters in practice — because factual material is far more likely to be discoverable, even if the investigation itself was conducted by or at the direction of counsel.

Recent case law reinforces these risks. In a recent California case,Paknad v. Superior Court (Cal. Ct. App. 2026), the court held that when an employer relies on an internal investigation to defend its employment decisions, it must generally disclose the underlying facts of that investigation, including witness statements. The court made clear that a company cannot rely on its investigation as a defense while simultaneously withholding the factual record behind it. Where interviews are recorded, that “factual record” is far more expansive — and far more difficult to control. Other courts have also declined to extend privilege to verbatim audio recordings created by an attorney or during HR investigations. These cases underscore the broader principle highly relevant to modern HR practices: investigative materials, particularly those that are verbatim factual record, are subject to disclosure, even when lawyers are involved.

To be clear, recording an interview does not automatically waive privilege in every case. But in practice, it materially increases the risk that:

• the company will be required to produce the substance of witness interviews,
• privilege claims will be harder to sustain, and
• the organization will lose control over how the investigation is used in litigation.

For that reason, the most defensible approach in sensitive matters is usually to avoid recording interviews altogether. Instead, HR professionals and in‑house counsel should consider having counsel (or HR acting at counsel’s direction) conduct interviews live and prepare thoughtful, attorney‑directed summaries that separate factual recitation from legal analysis. This approach preserves flexibility, strengthens privilege arguments, and limits the creation of discoverable verbatim evidence.

Conclusion

While recording tools are convenient, they often create more risk than value in the context of workplace investigations. Organizations should approach recording with caution and, in most cases, treat “no recording” as the default rule when privilege and litigation exposure are in play.