When high-profile employment disputes enter the Employment Court, the interlocutory skirmishes (hearings to decide a procedural or temporary issue) can be just as important as the substantive hearing. The recent decision in Santamaria v Television New Zealand Ltd is a case in point, offering lessons for employers on the limits of legal professional privilege and the risks of selectively disclosing information.
In an interlocutory decision released on 7 September 2026, Judge Smith ordered disclosure of the unredacted “Robins Report”. The report is a review commissioned by TVNZ following public scrutiny of Mr Santamaria’s recruitment then departure from the broadcaster.
Background
In mid-April 2022, Kamahl Santamaria began working for TVNZ as a presenter on Breakfast. The employment was short-lived. On 28 May 2022, the parties signed a settlement agreement under section 149 of the Employment Relations Act 2000. The agreement included a mutual non-disparagement clause.
After Mr Santamaria’s appointment and departure caught media attention, the Minister of Broadcasting sought assurances from TVNZ about its recruitment and workplace practices. In response, TVNZ commissioned employment lawyer Margaret Robins to undertake an independent review of its recruitment policies, processes, practices, and workplace complaints procedures. While TVNZ publicly released a summary of the review’s findings in July 2022, it declined to disclose the full report, maintaining that it was legally privileged. Notably, Mr Santamaria was never interviewed as part of the review.
Mr Santamaria subsequently issued proceedings claiming breaches of duties owed to him as an employee and breaches of the settlement agreement. TVNZ denied the claims and counterclaimed, alleging Mr Santamaria breached the settlement agreement. Two interlocutory disputes came before the Court, including Mr Santamaria’s application for disclosure of the unredacted Robins Report.
Relevance Comes First
Before considering the report’s legal privilege, the Court had to firstly decide the relevance of the report to the case.
TVNZ argued that only the published summary was relevant and that the report itself was not. The Court rejected that argument. Judge Smith noted that both parties’ pleadings referred to the report and its contents, particularly in relation to allegations that publication of the review’s findings breached the settlement agreement’s non-disparagement provisions. The Court also observed that TVNZ relied upon the report extensively in witness evidence and it formed part of their response to Mr Santamaria’s claims.
Importantly, the Court accepted that if the publicly released summary did not accurately reflect the report itself, that discrepancy could support Mr Santamaria’s claims. That made the report directly relevant to the issues in dispute.
The Waiver Problem: You Cannot Cherry-Pick
Even if privilege had existed, the Court held that TVNZ had waived it. This aspect of the decision will be of particular interest to employers who seek to publicly rely on the conclusions of workplace investigations while withholding the investigation details.
TVNZ had:
- published a detailed summary of the Robins Report;
- publicly endorsed its findings and recommendations
- referenced aspects of the report concerning Mr Santamaria’s recruitment; and
- later provided redacted versions of the report during the litigation.
The Court found that the summary contained substantive findings and observations drawn from the report. By publicly relying on those conclusions and using them to support its position, TVNZ acted inconsistently with maintaining confidentiality over the underlying document. Judge Smith observed that a party cannot selectively disclose favourable portions of a report while claiming privilege over the remainder.
The Court also considered that TVNZ’s pleadings went beyond merely responding to Mr Santamaria’s allegations. By affirmatively relying on the report to defend claims of disparagement, TVNZ had placed the report’s contents in issue, creating a further basis for waiver.
Ultimately, the Court is satisfied that the report is A) relevant to the case, and B) is no longer considered legally privileged. This means that the full contents of the Robins Report will be made available as part of the proceedings.
Key Takeaways for Employers
Employers frequently engage lawyers to conduct independent reviews, culture assessments, recruitment audits and workplace investigations. However, simply retaining a lawyer is not enough to ensure privilege will apply.
The decision also highlights the risks associated with publishing summaries of investigation findings. Where an employer publicly relies on conclusions from a purportedly privileged report, there is a real possibility that privilege may be found to have been waived, particularly if fairness requires the other party to see the full picture.
For employers commissioning workplace reviews or investigations, three key lessons emerge:
- Clearly define whether the purpose of the engagement is to obtain legal advice or to conduct a broader business review.
- Draft terms of reference carefully and ensure they align with the intended legal purpose.
- Exercise caution when publishing summaries or relying on findings publicly, as doing so may undermine any later claim to privilege.
The Court’s decision reinforces a principle that employment lawyers regularly emphasise: privilege is a valuable protection, but it is not automatic, and it can be lost. Contact Lane Neave’s Employment Team for legal advice.
