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

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. More…

Penn State Loses Privilege Clash over Internal Investigation, and the Reason May Surprise You

In the continuing fallout from the reprehensible Jerry Sandusky scandal, a PA appellate court rejected Penn State’s attorney–client privilege claim over documents that Louis Freeh’s law firm generated during its internal investigation.  The reason?

The court found that there was no attorney–client relationship between Penn State and Freeh’s law firm, and, without this relationship, the privilege did not cover communications between Penn State Board of Trustees and Freeh’s firm.  The court made this finding even though the Board Chair signed the engagement letter and the Board paid Freeh’s fees.  Estate of Paterno v. NCAA, 168 A.3d 187 (Pa. Super. Ct. 2017).  You may read the decision here.

The Forgotten Privilege Element

Regular readers of this blog know that the party asserting the attorney–client privilege must show three primary elements: a (1) confidential (2) communication made for (3) legal-advice purposes.  We too often, though, presume—and forget about—a threshold element: a lawyer–client relationship. More…

Internal-Investigation Emails between Non-Attorney Employees–Privileged? 2

If handled correctly, in-house counsel may delegate an internal investigation to a non-legal department.  The question arises whether the attorney–client privilege applies to investigation-related emails between non-attorney employees.  These type of emails often appear business-related and far removed from the company’s legal department.

In Crabtree v. Experian Info. Solutions, Inc., 2017 WL 4740662 (ND Ill. Oct. 20, 2017), the USDC for Illinois’ Northern District held that the corporate attorney–client privilege applies to emails between non-attorney employees so long as a lawyer has “some relationship to the communication” and the email would reveal the “substance of a confidential attorney–client communication.”

This case, available here, provides a short but good read on this tricky internal-investigation privilege issue.

In-House Counsel Delegates Internal Investigation

After receiving confidential information about one of its users, Experian’s in-house counsel asked its compliance division to conduct an internal investigation and report back to the legal department.  The investigation included emails between non-attorney employees, and the plaintiff in a subsequent putative FCRA class action moved to compel these communications. More…