The Seventh Circuit Court of Appeals in Sandra T.E. v. South Berwyn School District 100 recently held that summaries of witness interviews and concluding memoranda prepared by a school board attorney were protected from disclosure by the attorney-client privilege and work product doctrine. This case highlights the potential protections afforded to school boards who retain legal counsel to investigate allegations of harassment, discrimination, abuse, bullying or other misconduct.

In Sandra T.E., a male elementary school teacher was arrested for repeatedly sexually abusing numerous female students, ages 9 to 12, from 1998 through January 2005. Some of the victims claimed they reported the abuse to the principal after it occurred, but the principal failed to take appropriate action against the teacher. Shortly after the teacher’s arrest, the victims and their families filed a civil lawsuit against the school board and principal under Title IX of the Education Amendments of 1972 and various state laws.

Due to the public outrage over the extent and duration of the abuse, the school district retained a law firm to conduct an internal investigation. The law firm and the school board signed an engagement letter stating that the law firm was “to investigate the response of the school administration to allegations of sexual abuse of students” and “provide legal services in connection with the specific representation.”

Over three months, the firm's attorney interviewed school district employees and other third parties who had never been employed by the school board. During the confidential interviews with these witnesses, the attorney provided the so-called "Upjohn warnings", emphasizing that the attorney represented the school board and not the witness and that the school board had control over whether the conversations remained privileged. No third parties attended the witness interviews. The attorney took notes of the witnesses’ answers and then memorialized the interviews in a written memoranda. A written executive summary marked "privileged and confidential", "attorney-client communication" and "attorney work product" was prepared by the attorney, delivered to the school board, and discussed in private executive session.

During discovery for their lawsuit, plaintiffs sought to compel the law firm to disclose the notes and memoranda from the witness interviews and the executive summary of the investigation prepared for the school board. The law firm asserted the attorney-client privilege and work product doctrine and refused to produce these documents. Nonetheless, the trial court ordered the school board to disclose any documents relating to the law firm's investigation that the school board had in its possession.

When it became clear that the law firm, not the school board, had the documents plaintiffs sought, the plaintiffs filed a motion asking the trial court to hold the law firm in contempt of court for failing to produce the summaries of the witnesses interviews and the executive summary to the school board. The trial court held the school board hired the law firm in the role of an "investigator" and not as an attorney. Therefore, the court ruled the attorney-client privilege and work product doctrine did not apply, and the law firm was ordered to produce the requested documents. The school board and law firm both appealed the court's ruling.

On appeal, the Seventh Circuit noted that the test for determining whether a communication falls within the protection of the attorney-client privilege is: (1) whether “legal advice of any kind [was] sought…from a professional legal adviser in his capacity as such;” and (2) whether the communication was “related to that purpose” and “made in confidence…by the client.” The court emphasized how the trial court seemingly ignored the engagement letter between the law firm and the school board, which clearly stated the law firm was retained to both investigate and to provide legal services.

The court then determined that although the attorney conducted a factual investigation, this investigation was an integral part of the legal services for which the law firm was hired, and a necessary prerequisite to providing legal advice on how the school board should respond. The court noted that the attorney-client privilege protects not only the attorney-client relationship in imminent or ongoing litigation, but also in the broader attorney-client relationship outside the litigation context. Therefore, the court held that the attorney's notes and memoranda prepared from the employee statements, and the executive summary to the school board were protected by the attorney-client privilege and were not subject to disclosure.

The court also held that the work-product doctrine applied to protect the attorney's work from discovery. The work-product doctrine is designed to: “(1) protect an attorney’s thought processes and mental impressions against disclosures; and (2) limit the circumstances in which attorneys may piggyback on the fact-finding investigation of their more diligent counterparts.” The court stated that the, “work product protection applies to attorney-led investigations when the documents at issue ‘can fairly be said to have been prepared or obtained because of the prospect of litigation.’” The court held that the law firm's witness-interview notes and memoranda were prepared with an “eye toward” pending litigation and qualified for work-product protection.

Lessons Learned:

1. Last year, the Ohio Supreme Court in State ex rel. Toledo Blade v. Toledo-Lucas County Port Authority held that a report prepared by an attorney retained by a public body to investigate employee misconduct was protected by the attorney-client privilege from disclosure pursuant to the Public Records Act. Sandra T.E. arguably takes the next step forward to also preclude from civil discovery any notes and summaries of witness interviews prepared by a school board attorney retained to investigate misconduct and provide legal advice. While this case is not binding on Ohio courts, it nonetheless supports a persuasive legal argument that notes and summaries of witness interviews prepared by a school board's attorney are protected by the attorney-client privilege and work product doctrine from discovery in a civil lawsuit.
    
2. School boards faced with a pending investigation into allegations of harassment, discrimination, bullying, abuse, neglect or other misconduct should carefully consider whether to retain legal counsel to conduct the investigation. As the above cases reflect, a properly-retained law firm that is competent to conduct these types of investigations provides not only legal experience to guide a school board's response, but also confidentiality from public disclosure during the pendency of the investigation and possibly during the course of civil litigation. The attorneys at Dinsmore & Shohl have conducted numerous internal investigations similar to those described in this article. Please call if you have questions in regards to such matters.