“Pardon Me, Boy,” Does Release of Atty’s Investigation Report Waive the Privilege? Reply

Chattanooga—home to beautiful scenery, Civil War battlefields, the Jimmy Hoffa trial, and the “Track 29” train’s destination in (“Pardon me, boy, is that the”) Chattanooga Choo Choo—is the setting for the latest judicial opinion on internal investigations and privilege waiver.

Chattanooga Choo Choo Station Platform

In a case involving a lawyer’s investigation into sexual-assault allegations involving a high-school basketball team, the USDC for EDTN held that the local school board’s publication of the lawyer’s report waived privilege and work-product protections for the lawyer’s underlying interviews and communications, including emails with another Board attorney.  Doe v. Hamilton County Board of Education, 2018 WL 542971 (ED Tenn. Jan. 24, 2018).  You may read the decision here.

The Investigation Report

Upon learning of sexual-assault allegations involving Ooltewah High School boys’ basketball team (Washington Post story available here), the Hamilton County (Chattanooga) Dep’t of Education retained Chattanooga attorney Courtney Bullard to independently investigate the OHS issue and provide legal advice to HCDE.  You may read the HCDE–Bullard engagement letter here.

HCDE, presumably for public-relations purposes, later released Bullard’s report for public consumption.  You may read the actual report here.

The alleged sexual-assault victims sued HCDE and moved to compel 130 of Bullard’s emails, including emails with another Board attorney, Scott Bennett.  HCDE claimed that the attorney–client privilege and work-product doctrine protected these communications from disclosure (privilege log available here).

Ruling

Magistrate Judge Chris Steger, correctly applying federal common law, held that parties may waive the attorney–client privilege upon disclosure of privileged information to third-parties, and that the waiver may extend “to all privileged communications on the same subject matter.”

But HCDE only released the report—not communications related to the report—so did waiver apply?  Finding the USDC’s decision in Doe v. Baylor Univ., 320 FRD 430 (W.D. Tex. 2017), “directly on point, well-reasoned and persuasive,” Judge Steger ruled that, when the Board released Bullard’s report, “it waived the attorney–client privilege as to the entire scope of the investigation, … and all materials, communications, and information” provided to Bullard during her investigation.

In Doe v. Baylor Univ., the Court held that Baylor waived the privilege as to all communications provided to its investigating lawyers after the university released the lawyers’ “Findings of Fact” and “Recommendations” to counter adverse public opinion over sexual assaults on its campus.  Read my posts, here and here, for a more in-depth review of the Doe ruling.

Nice Try, but No.

The Doe Court issued its opinion on August 11, 2017.  HCDE’s lawyers must have read the decision and become worried about privilege waiver because, on August 21, 2017, HCDE designated Attorney Bullard as a Rule 26 testifying expert and claimed that the rule’s confidentiality provisions protected Bullard’s communications from disclosure.

Judge Steger quickly saw through this shifting designation, and held that Bullard created the putatively privileged communications during the investigation, not as a Rule 26 expert, and that HCDE’s “belated designation of Attorney Bullard as an expert witness does not permit retroactive application” of Rule 26’s disclosure protections.

What about the Work-Product Doctrine?

Surely HCDE anticipated litigation prior to retaining Bullard; so, the work-product doctrine protects from disclosure her communications with the Board’s other attorney (Bennett), right?

Judge Steger correctly noted the narrow waiver application for opinion work product but, again relying on Doe v. Baylor, held that HCDE put Bullard’s report “at issue” in the litigation, which waives even opinion work product.  HCDE “accentuated” the at-issue waiver by designating Bullard as a Rule 26 expert.

So, in sum, we now have Doe v. Baylor and Doe v. Hamilton County Board of Education telling us that publicly releasing an attorney’s internal investigation report waives privilege and (likely) work-product protections.

Pardon me, boy, is this now clear enough?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s