Buck v. Indian Mountain School, Inc.

Filing 149

RULING denying (Dkt. #98) Plaintiff's Motion to Compel. Signed by Judge Joan G. Margolis on 1/31/2017. (Watson, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
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PETER BUCK
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v.
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INDIAN MOUNTAIN SCHOOL
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15 CV 123 (JBA)

JANUARY 31, 2017

RULING ON PLAINTIFF'S MOTION TO COMPEL DOCUMENTS WITHHELD BY
DEFENDANT ON CLAIMS OF ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT
PROTECTION (Dkt #98)
Familiarity with this litigation, and with this Magistrate Judge’s previous discovery
rulings, is presumed. (See, e.g., Dkts. ##56, 69). On January 9, 2017, plaintiff filed the
pending Motion to Compel Production of Documents Withheld by Defendant on Claims of
Attorney-Client Privilege and Work-Product Protection (Dkt. #98),1 which was referred to this
Magistrate Judge three days later. (Dkt. #101). On January 17, 2017, this Magistrate Judge
held a telephonic discovery conference regarding the pending motion (Dkt. #104), during
which defendant Indian Mountain School [“IMS”] and non-party Shipman & Goodwin, the law
firm engaged to investigate the underlying claims of abuse, were ordered to file their briefs
in opposition by January 24, 2017, and to produce the disputed documents for this Court’s
in camera review, if such review is necessary after briefing is complete. Consistent with this
Court’s order, on January 24, 2017, defendant filed its brief in opposition, with exhibits in

1

Attached to plaintiff’s brief is an affidavit from counsel with the following exhibits: copy of
the Indian Mountain School [“IMS”] Shipman & Goodwin LLP Privilege Log, dated November 23,
2016 (Exh. A); copy of the IMS Supplemental Privilege Log, dated November 7, 2016 (Exh. B); and
copy of a letter entitled IMS Launches Investigation into Allegations from the Past, authored by the
IMS Head of School and the President of the Board of Trustees, undated (Exh. C).

support (Dkt. #124),2 and Shipman & Goodwin filed its brief in opposition, with exhibits in
support. (Dkt. #127).3 Both parties also provided Chambers with copies of the withheld
documents. Currently, the trial is scheduled to commence on February 13, 2017 and proceed
through February 24, 2017. (Dkt. #103).
For the reasons stated below, plaintiff's Motion to Compel (Dkt. #98) is denied.
I. DISCUSSION
A. BACKGROUND
Beginning in 1993, defendant was sued by former students who alleged that they
were sexually abused while attending the school. (Dkt. #124, at 2). Attorney Altermatt has
represented defendant in these lawsuits, and represented defendant in this case until July
26, 2016. (Id.; see Dkt. #60). During the course of his representation of defendant,
Attorney Altermatt conducted discovery, including depositions of plaintiffs and former
employees and Trustees; each of the earlier cases settled prior to trial. (Id.). In addition
to hiring Attorney Altermatt to defend the school, in 2014 the school retained attorneys
Morgan Ruekert and James Bergenn of Shipman & Goodwin to “conduct a complete
investigation and to report back to the Board regarding what happened, and how best to
respect and support any alumni who may have been harmed.” (Dkt. #98, at 4 & Exh. C; see
also Dkt. #127, Exh. A). Defendant “invite[d] any alumni or other past or present members
of the community with any relevant information to contact the Head of School . . . . or

2

Attached to defendant’s brief in opposition is a letter from plaintiff’s counsel to IMS’
alumni, dated January 5, 2017 (Exh. A); affidavit of defense counsel, sworn to on January 23, 2017
(Exh. B); and a copy of case law. (Exh. C).
3

Attached to this brief in opposition is another copy of the letter from the defendant to its
alumni, this time dated November 5, 2014 (Exh. A), and another copy of Shipman & Goodwin’s
thirteen page Privilege Log, dated November 23, 2016 (Exh. B).

2

Shipman & Goodwin . . . .” (Dkt. #98, Exh. C; Dkt. #127, Exh. A).
On January 5, 2017, plaintiff’s counsel mailed a letter to “all IMS alumni who
attended the school during the period of 1973-1987 to request that anyone with information
about sexual abuse occurring at the school during that time to contact [him].” (Dkt. #124,
Exh. A). Four days later, plaintiff filed this Motion to Compel, seeking the notes and
correspondence that memorialized the resulting communications between Shipman &
Goodwin and IMS’ litigation counsel.

According to plaintiff, defendant has improperly

withheld two categories of documents: (1) written statements by IMS alumni solicited in the
course of an “investigation” conducted by Shipman & Goodwin, the school’s “independent
counsel”, and (2) non-privileged facts contained in communications and notes authored by
the defendant and its counsel. (Dkt. #98, at 2). 4
Shipman & Goodwin contends that information that plaintiff seeks falls within three
categories: (1) privileged attorney-client email communications from defendant IMS’ Head
of School to counsel, attaching emails and/or notes, and further commenting to counsel; (2)
attorney

work

product

notes

by

the

Head

of

School

and/or

counsel

of

conversations/interviews with Alumni; and (3) work product email communications between
Alumni and the Head of School and/or counsel in response to the general communication to
Alumni. (Dkt. #127, at 3). Similarly, defendant contends that the documents plaintiff seeks
consist of protected work product, and fall into seven categories: (1) notes of conversations
with individuals who were deposed (and whose depositions are already in plaintiff’s
possession); (2) notes of conversations with individuals who could have been deposed by

4

As referenced above, the documents are identified in two privilege logs, the “IMS Shipman
& Goodwin LLP Privilege Log” and the “Indian Mountain School Supplemental Privilege Log.” (See
Dkt. #98, Exhs. A-B; see also Dkt. #127, Exh. B).

3

plaintiff; (3) investigation containing publically available information; (4) handwritten notes
containing case strategy information; (5) documents “where it is not even clear who the
witness is”; (6) notes of preparation for a deposition; and (7) miscellaneous notes, including
notes on legal research, a draft timeline, a draft chronology, and a summary of Trustee
Minutes (which are all in plaintiff’s possession). (Dkt. #124, at 3).
B. MOTION TO COMPEL STANDARD, ATTORNEY-CLIENT PRIVILEGE AND WORK
PRODUCT PRIVILEGE
“‘The attorney-client privilege protects communications (1) between a client and his
or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the
purpose of obtaining or providing legal assistance.’” Brennan Ctr. for Justice at N.Y. Univ.
Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 207 (2d Cir. 2012), quoting U.S. v. Mejia,
655 F.3d 126, 132 (2d Cir. ), cert. denied sub nom. Rodriguez v. U. S., ___ U.S. ___, 132 S.
Ct. 533 (2011).

The work product doctrine protects the discovery of memoranda,

correspondence, briefs, mental impressions and personal beliefs prepared in anticipation of
litigation. Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). Under Rule 26(b)(3)(A) of the
Federal Rules of Civil Procedure,
Ordinarily, a party may not discover documents and tangible things
that are prepared in anticipation of litigation or for trial by or for another
party or its representative (including the other party’s attorney. . . ). But,
subject to Rule 26(b)(4), those materials may be discovered if:
(1) they are otherwise discoverable under Rule 26(b)(1)[5]; and

5

Rule 26(b)(1) of the Federal Rules of Civil Procedure allows discovery of:

any nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties' relative access to
relevant information, the parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery need not be

4

(2) the party shows that it has substantial need for the materials to
prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.
Additionally, pursuant to Rule 26(b)(3)(B), “[i]f the court orders discovery of those materials,
it must protect against disclosure of mental impressions, conclusions, opinions, or legal
theories of a party’s attorney or other representatives concerning the litigation.” The party
invoking a privilege “bears the burden of establishing its applicability to the case at hand.”
In re Grand Jury Subpoenas Dated March 19, 2002 & August 2, 2001 v. United States, 318
F.3d 379, 384 (2d Cir. 2003)(multiple citations omitted).
As this Magistrate Judge has discussed: “The purpose of the privilege is ‘to prevent
a party from taking advantage of his adversary’s efforts to gather material for litigation, and
to foster the adversary system by providing a safe harbor within which an attorney can
analyze and prepare his client’s case.’” Hildebrand v. Wal-Mart Stores, Inc., 194 F.R.D. 432,
434 (D. Conn. 2000), quoting U.S. v. Weissman, No. S1 CR 760(CSH), 1995 WL 244522, at
*5 (S.D.N.Y. Apr. 26, 1995)(citations omitted). “For ‘fact’ work product, that is workproduct that does not contain legal opinions or conclusions, the party seeking discovery must
meet the ‘substantial burden’ and ‘undue hardship’ tests outlined in Rule 26.” FDIC v.
Wachovia Ins. Svs., Inc., 241 F.R.D. 104, 106 (D. Conn. 2007)(citation omitted). “Opinion
work-product is given stronger protection and is discoverable only in rare circumstances
where the party seeking discovery can show extraordinary justification.” Id. (citations
omitted).
With the foregoing principles in mind, this Magistrate Judge will first address the

admissible in evidence to be discoverable.
FED. R. CIV. P. 26(b)(1).

5

seven categories of documents withheld by defendant, followed by the documents withheld
by Shipman & Goodwin.
1. DOCUMENTS SOUGHT FROM DEFENDANT IMS’ COUNSEL
As discussed above, plaintiff seeks notes of conversations with individuals who were
deposed (and whose depositions are already in plaintiff’s possession); notes of conversations
with individuals who could have been deposed by plaintiff; and notes from conversations in
which the witnesses are not identified. (Dkt. #124, at 3). “[M]emoranda based on oral
statements of witnesses . . . would reveal the attorney’s mental processes[, and] . . . [i]t is
clear that this is the sort of material the draftsmen of [Rule 26(b)] had in mind as deserving
special protection.” Upjohn v. United States, 449 U.S. 383, 400 (1981). Moreover, “[f]orcing
an attorney to disclose notes and memoranda of witnesses’ oral statements[,]” which is
precisely at issue in these categories of documents, “is particularly disfavored because it
tends to reveal the attorney’s mental processes.” See id. at 399; see also Hildebrand, 194
F.R.D. at 434, citing In re Grand Jury Proceedings, 473 F.2d 840, 848 (8th Cir. 1973)(the
work product doctrine also protects discovery of oral statements of witnesses). Accordingly,
Attorney Altermatt’s notes of witness interviews, which include his mental impressions and
thought processes, are protected work-product, and as such, have been appropriately
withheld by defendant. (See Dkt. #124, at 6-7; Dkt. #98, Exh. A, Document Nos: 84-86, 9798, 100-20, 123-33, 135-36, 140-41, 143-45, 148-58, 160-61, 163, 165-81,183-87, 189, 19293, 202).6

6

Three documents appear on defendant’s privilege log (Dkt. #98, Exh. B), but are not
included in its seven categories (Dkt. #124, at 3; Exh. B, ¶ 5). Although No. 202 was not
specifically listed, it also falls within the same classification. With respect to Nos. 231-32,
defendant represents that they have been disclosed to plaintiff’s counsel, except for redaction of
the name of the student who brought a claim against IMS. (Dkt. #124, at 1, n.1).

6

Defendant categorizes the remaining documents at issue as: records of
“[i]nvestigation containing publicly available information”; “[h]andwritten notes containing
case strategy information”; “[n]otes for preparation for a deposition”; and notes on legal
research, a draft timeline, a draft chronology, and a summary of Trustee Minutes, which
Minutes are in plaintiff’s possession. (Dkt. #124, at 10). Defendant contends that these
documents “do not contain any facts that are not equally available to [p]laintiff[,]” and
plaintiff has not established that “he is entitled to Attorney Altermatt’s case strategy
information or deposition preparation notes.” (Id.). In light of the broad description of the
foregoing documents, this Magistrate Judge undertook a careful and thorough in camera
review of these categories of documents.

After such a review, this Magistrate Judge

concludes that these documents (Document Nos. 78-83, 97-98, 190, 194, 196-97) are
properly withheld as protected work product. The majority of these documents contain
opinion work product which is entitled to a greater protection than fact work product, In re
Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183-84 (2d Cir. 2007), cert. denied
sub. nom Doe v. U.S., 663 U.S. 1094 (2008), and for the one document containing publicly
available information and fact work product, plaintiff has failed to satisfy his burden that he
has a substantial need for this material and is unable to obtain it from another source

Additionally, for the category of documents where it is not clear who the witness is, the
fact remains that the witness is one of people identified in the lists naming alumni, employees and
Trustees, which was provided to plaintiff by defendant. Plaintiff has not claimed that the
information contained in these notes cannot be obtained by other means, and without undue
hardship. In fact, plaintiff has demonstrated his ability to solicit information from “alumni who
attended the school during the period of 1973-1987[.]” (See Dkt. #124, Exh. A). Defendant
represents that on August 10, 2015, it provided plaintiff’s counsel with a list of all former Trustees,
students and employees, with last known address and telephone numbers, and yearbooks. (Dkt.
#124, at 2, 8, & 9, n.5).
Despite the conclusion reached here, the Magistrate Judge nonetheless conducted an in
camera review of all of these documents, which reinforces the conclusion that these documents are
not discoverable.

7

without undue hardship.
2. DOCUMENTS SOUGHT FROM SHIPMAN & GOODWIN
“In the context of the attorney-client privilege, legal advice involves the interpretation
and application of legal principles to guide future conduct or to assess past conduct.
Obtaining or providing legal advice must be the predominant purpose of a privileged
communication.” Koumoulis v. Indep. Fin. Mktg. Group, Inc., LP, 295 F.R.D. 28, 37 (E.D.N.Y.
2013)(internal quotations omitted)(compiling cases), Magistrate Judge’s ruling adopted, 29
F. Supp. 3d 142 (E.D.N.Y. 2014). “Investigatory reports and materials are not protected by
the attorney-client privilege or the work-product doctrine merely because they are provided
to, or prepared by, counsel.” OneBeacon Ins. Co. v. Forman Int’l Ltd., No. 04 Civ. 2271
(RWS), 2006 WL 3771010, at *5 (S.D.N.Y. Dec, 15, 2006)(citation omitted). However,
“factual investigations performed by attorneys as attorneys fall comfortably within the
protection of the attorney-client privilege.” Sandra T.E. v. South Berwyn Sch. Dist. 100, 600
F.3d 612, 619 (7th Cir. 2010)(emphasis in original), citing Upjohn, 449 U.S. at 401. Thus, the
court must examine the role of the Shipman & Goodwin attorneys in this case, considering
the duties they performed, and must determine whether they were providing legal advice or
were serving as independent investigators.
Plaintiff, relying on the strikingly similar facts in Zimmerman v. Poly Prep Country Day
Sch., No. 09 CV 4586(FB), 2011 WL 1429221 (E.D.N.Y. Apr. 13, 2011), urges this Court to
conclude that the documents withheld by Shipman & Goodwin are not privileged. The
plaintiffs in the Zimmerman case sued defendants for their response, or the lack thereof, to
allegations that the school’s highly regarded football coach and physical education instructor
had sexually abused students over the course of several decades, starting in 1996. 2011 WL

8

1429221, at *1-9. Despite several complaints in the 1960's, 1970's, and 1980's, the
defendant school did not deem any of them credible until one in 1991, at which time the
football coach was forced to retire (but with an alumni event held in his honor).7 Id. It was
not until 2002 that the school began a formal investigation into all these allegations, upon
the receipt of a demand letter from an attorney representing a graduate who claimed that
he had been sexually abused by this coach. Id. At the time, the defendant school consulted
with its outside counsel, and also hired a solo practitioner, Peter T. Sheridan, Esq. “to
conduct what [defendants] claim[ed] was a privileged and confidential investigation
regarding [the coach’s] alleged misconduct,” which investigation was “to be performed in
collaboration with [the school’s] outside counsel.” Id. at *9. In late 2002, the defendant
school also sent a mass mailing to its alumni, in which it advised that the school’s directors
were conducting an “ongoing” investigation into the sexual abuse allegations. Id. at *28,
n.63. Attorney Sheridan interviewed faculty and staff, including former Headmasters and
Assistant Headmasters, Athletic Directors, and other coaches; he concluded that there was
no firsthand or secondhand knowledge of any alleged sexual abuse at the school, other than
the accusations made in 1991 and one other; his notes from his investigation subsequently
were destroyed. Id. at *9. The plaintiffs alleged that Attorney Sheridan had failed to
interview key individuals, including some other members of the Athletic Department as well
as any of the complaining alumni. Id. The destruction of Attorney Sheridan’s notes gave rise
to plaintiffs’ motion for spoliation. Id. at *1, 10-12. Plaintiffs further alleged that the
numerous outside counsel whom the defendants retained to defend them in the newly filed
lawsuits against them had, at

some point, been given access to Attorney Sheridan’s

7

He passed away seven years later, at which time a memorial fund was created in his
memory. Id. at *7.

9

investigative notes, but failed to put a litigation hold on defendants’ documents, including
those generated by Attorney Sheridan. Id. at *14-21.
Defendants in Zimmerman argued, inter alia, that plaintiffs had no right to assert
spoliation of attorney notes because such notes were “quite limited” and included “only
general themes and personal shorthand[,]” and were further protected from disclosure
under the attorney-client privilege and work product doctrine.

Id. at *26-27.

The

defendants in Zimmerman referred to Attorney Sheridan’s notes as “‘fact-finding’ notes,” and
his invoices described his tasks as “Fact Gathering[.]” Id. at *28 & n.62. According to
Attorney Sheridan, the stated purpose of his retention by defendant school “was to
investigate and learn ‘the extent, if any, to which members of the school’s faculty or
administration knew of sexual misconduct or sexual abuse by [the coach],’ not to advise [the
school] on how to proceed.’” Id. at *28.

However, the plaintiffs argued that the

documentation that still existed reflected that Attorney Sheridan did not reveal to the people
that he interviewed that he was an attorney, and he did not indicate that he was there for
the purpose of trying to defend the school in future litigation. Id. U.S. Magistrate Judge
Cheryl Pollak found that defendants had not met their burden with respect to the applicability
of either the attorney-client or work product privileges, particularly when “the defendants’
spoliation has deprived plaintiffs of the opportunity to have this Court conduct an in camera
review to determine the existence of said privilege and to have the documents produced in
partially redacted form[]”; accordingly, sanctions were imposed. Id. at *29-35, 39. 8

8

Similarly, in Rivera v. Thurston Foods, Inc., No. 11 CV 893 (JBA), 2012 WL 603297, at *1,
3 (D. Conn. Feb, 24, 2012), relying upon Zimmerman, this Magistrate Judge found “under the
unusual circumstances of [that] case,” a “Statement of Facts” prepared by a plaintiff at his
attorney’s request, that were lifted in “nearly identical” fashion into the plaintiff’s complaint, was
not governed by either the attorney-client privilege or the work-product protection, although all the
other documents at issue were so protected. Rivera, 2012 WL 603297, at *1, 3.

10

This case, however, differs from Zimmerman in at least four important respects.
In this case, Shipman & Goodwin was retained in October 2014 “by a Special Committee of
the Board of Trustees of IMS to conduct a comprehensive investigation of allegations of
sexual molestation against the school[.]” (Dkt. #127, at 1).

According to Shipman &

Goodwin, the firm was also retained to “advise IMS about how to respond to the ongoing
and anticipated litigation.” (Id.). In the letter sent to the “IMS Community” on November
5, 2014, the Head of School and Board of Trustees of defendant described Shipman &
Goodwin’s role as follows: “[t]he Board of Trustees has retained independent legal counsel
to conduct a complete investigation and to report back to the Board regarding what
happened, and how best to respect and support any alumni who may have been harmed.
The investigation will be led by . . . the law firm Shipman & Goodwin.” (Dkt. #127, Exh. A).
The letter went on to explain the attorneys’ experience, and defendant’s reliance on their
judgment – “Mr. Ruekert and Mr. Bergenn have extensive experience handling this type of
investigation, and we have confidence in their integrity, sensitivity, and judgment.” (Id.).
Defendant encouraged the IMS “community” to contact the Head of School or Shipman &
Goodwin so that they may “listen to any information you are willing to share, and to offer
any other direct support you may need.” (Id.).9

9

As Shipman & Goodwin explained in its brief:

All individuals who were interviewed contacted counsel in response to the
general communication sent to Alumni. No individuals were contacted unsolicited.
During interviews, counsel identified himself as a lawyer, that he was not IMS’[]
litigation counsel, and that he was going to report his findings to the [IMS] Board,
but that he did not intend to share any of the names of the victims, only names of
persons who could be substantiated as having committed misconduct. During the
course of the investigation, Shipman did not share any of its findings or
information it obtained with insurance defense counsel.
(Dkt. #127, at 2).

11

First, Attorney Sheridan’s role was limited merely to fact-finding, without any
indication that he was going to make any recommendations, legal or otherwise, to the
defendant school, unlike Shipman & Goodwin, whose retention included advising defendant
IMS “how best to respect and support any alumni who may have been harmed[,]” and which
law firm specifically was retained in connection with ongoing and anticipated litigation.
Second, Attorney Sheridan apparently did not reveal to the people that he interviewed that
he was an attorney, nor he did indicate that he was there for the purpose of trying to defend
the school in future litigation, whereas the alumni notice in this case clearly spells out that
Ruekert and Bergenn are attorneys. At the time the letter was sent to the IMS community,
defendant had been defending lawsuit for twenty-one years, from 1993 through 2014, so
that litigation clearly was anticipated. Third, there apparently was no expectation of privacy
or confidentiality in the fact-gathering interviews conducted by Attorney Sheridan; while the
words “privacy” or “confidentiality” do not appear in the November 5, 2014 mass mailing, the
insertion of the words “integrity” and “sensitivity” in describing Attorneys Ruekert and
Bergenn’s experience to this field give the same impression that the communications to them
will not be revealed.10 And lastly, the people interviewed by Attorney Sheridan were all
prominent representatives of the defendant school, individuals who clearly were going to be
deposed in the anticipated litigation in Zimmerman and whose alleged failure to respond was
apparent, or soon would be, and whose credibility was going to loom large at trial, whereas
the individuals targeted here for interview were other potential victims, or witnesses, that
is, people whose identities had not yet been revealed in the anticipated litigation.

10

See note 9 supra.

12

As a result, this case bears greater similarity to Sandra T.E., in which the plaintiffs
had filed a lawsuit against a public school district and an elementary school principal, alleging
that they had failed to respond when they learned of accusations that a music teacher had
been molesting students over a period of seven years. 600 F.3d at 615-16. Within a few
weeks of the filing of that lawsuit, and the music teacher’s arrest for those assaults (to which
he eventually confessed and was sentenced to twenty years in prison), defendant hired the
prominent law firm of Sidley Austin LLP, “spearheaded” by a former U.S. Attorney, “to
investigate the response of the school administration to allegations of sexual abuse of
students” and to “provide legal services in connection with” the investigation. Id. The
defendants also sent two letters to parents announcing their retention of the law firm and
explaining the law firm’s role in the investigation. Id. at 616. Attorneys from the law firm
interviewed current and former principals, current and former school employees, social
workers, school board members, administrative employees, and “a handful of” third-party
witnesses unaffiliated with defendant. Id. The lawyers did not record those interviews but
rather took handwritten notes that were later drafted into memoranda summarizing the
interviews; the law firm delivered its findings and legal advice to the school board in an oral
report and written executive summary. Id. The lawyers were not involved in defending the
defendants in the lawsuit. Id. at 615, 616. The plaintiffs sought discovery regarding the
contents of the law firm’s investigatory file, as to which defendants and Sidley Austin
objected on the basis of attorney-client privilege and work-product doctrine. Id. at 615. The
district judge denied a motion to quash, having concluded that Sidley Austin “had been hired
to provide investigative services, not legal services.” Id. Following this ruling, the law firm
turned over “more than a thousand pages of documents. . . . [b]ut the firm withheld its
notes and memoranda from witness interviews and other internal legal memoranda prepared
13

in connection with the investigation[,]” again asserting the attorney-client privilege and the
work-product doctrine. Id. at 616-17. After additional motion practice, the district court
twice ordered the law firm to produce the notes and internal memoranda, again finding that
the defendants had hired the law firm “as . . . investigator[s], not as . . . attorney[s].” Id.
at 617.
The Seventh Circuit reversed the district court’s ruling on appeal. Id. at 618-23. The
Seventh Circuit found that the district judge’s failure to “actually consider[]” the language of
Sidley Austin’s retention letter was a “mistake,” and the language in the retention letter
brought “this case squarely within the Supreme Court’s decision in Upjohn, which explained
that factual investigations by attorneys as attorneys fall comfortably within the protection of
the attorney-client privilege.” Id. at 619 (emphasis in original). The retention letter in
Sandra T.E. “spell[ed] out that [the defendants] retained Sidley [Austin] to provide legal
services in connection with developing [the defendants’] response to [the music teacher’s]
sexual abuse of his students[.]” Id. at 620. The Seventh Circuit found that the law firm’s
“investigation of the factual circumstances surrounding the abuse was an integral part of the
package of legal services for which it was hired and a necessary prerequisite to the provision
of legal advice about how the [defendants] should respond.” Id. While recognizing that a
defendant cannot utilize an engagement letter to “reclassify nonprivileged communications
as ‘legal services’ in order to invoke the attorney-client privilege,” id. (citation omitted), the
Seventh Circuit found that the Sidley Austin attorneys conducted themselves “in their
capacity as attorneys[.]” Id.

Specifically, Sidley Austin counsel conducted confidential

interviews with the defendants’ employees, provided them with the “so-called Upjohn
warnings” that they were representing the board itself and not the employees, and that the
school board would decide whether the conversations would remain confidential, and
14

ensured confidentiality by prohibiting third parties from attending the interviews. Id. With
respect to the work-product doctrine, the Seventh Circuit similarly rejected the plaintiffs’
argument that the Sidley Austin “investigation was only designed to quell public outrage and
prevent similar occurrences in the future,” finding instead that the “chronology of events
confirms that Sidley [Austin] was hired to conduct [the defendants’] investigation not merely
in anticipation of likely litigation but in response to the actual filing of this lawsuit.” Id. at
622 (emphasis in original). The Seventh Circuit further found that the defendants’ “other
motivations” in hiring the law firm, i.e., the public relations aspect of it, “[did] not remove
the investigation from the protection of the work-product doctrine.” Id. Lastly, with regard
to the “substantial need” and “undue hardship” considerations, the plaintiffs in Sandra T.E.
acknowledged that the information sought “would really only bolster already existing
impeachment evidence contained in their own investigation or in the police record.” Id. at
622-23.
There are multiple parallels between this lawsuit and Sandra T.E.

The

communications in the instant case between the Head of School and the Shipman & Goodwin
attorneys were confidential, as were the communications with the alumna and alumnus who
responded to defendant’s letter.

Second, in both cases, the law firms were retained

specifically to develop the defendants’ response to the claims of sexual abuse. Third, the
attorneys were retained in the midst of ongoing litigation. At the time the letter was sent
to the IMS Community, defendant was aware, and “deeply concerned[,] with allegations of
sexual abuse brought forth by alumni[,]” (Dkt. #127, at Exh. A),11 and as defendant notes

11

In addition to providing the Court with the letter sent to the “IMS Community[,]”
Shipman & Goodwin provided the Court and plaintiff with a detailed privilege log, and provided
copies of the challenged documents to this Magistrate Judge for her in camera review, should she
conclude that one is necessary. See Rao v. Bd. of Trustees of Univ. of Ill., No. 14 CV 66, 2016 WL

15

in its brief in opposition, IMS has been defending these suits since 1993. (Dkt. #124, at 2).
Additionally, the fact that defendant had retained different litigation counsel “is not
dispositive[,]” and “does not remove the investigation from the protection of the work
product doctrine.” Sandra T.E., 600 F.3d at 622.
Thus, while in limited situations documents protected as attorney work product are
discoverable if the party can establish a “substantial need” for the documents and cannot
obtain them without “undue hardship[,]” FED. R. CIV. P. 26(b)(3)(A)(iii), as discussed above,
the disclosure of witness interviews and documents related thereto, is “particularly
disfavored[.]” Upjohn, 449 U.S. at 399. Moreover, plaintiff, who has shown his ability to
reach out to defendant’s alumni (see Dkt. #124, Exh. A),12 albeit on the eve of trial,13 has not
established a showing of substantial need. 14
II. CONCLUSION
For the reasons stated above, plaintiff's Motion to Compel (Dkt. #98) is denied.
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the
standard of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a), 6(e) & 72;
and Rule 72.2 of the Local Rules for United States Magistrate Judges. As such, it is an order

6124436, at *6-7 (N.D. Ill. Oct. 20, 2016)(ordering production of investigative file when defendants
failed to produce affidavits, the engagement letter, a privilege log, or “even a general description
of the documents they seek to protect”).
Despite the conclusion reached here, the Magistrate Judge nonetheless has performed an
in camera review of all of the documents, which again reinforces the conclusion that these
documents are not discoverable. See note 6 supra.
12

See note 6 supra.

13

Similarly, these requests are before the Court long after the close of discovery (see Dkt.
#44), and within weeks of the start of trial.
14

In light of the conclusion reached here, there is no need to address the other arguments
made by Shipman & Goodwin in their brief. (Dkt. #127, at 11-13).

16

of the Court unless reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within
fourteen calendar days after service of same); FED. R. CIV. P. 6(a) & 72; Rule 72.2 of
the Local Rules for United States Magistrate Judges, United States District Court for the
District of Connecticut; Impala v. United States Dept. of Justice, ___ Fed. App’x ___, 2016
WL 6787933 (2d Cir. Nov. 15, 2016)(summary order)(failure to file timely objection to
Magistrate Judge’s recommended ruling will preclude further appeal to Second Circuit); cf.
Small v. Sec'y, H&HS, 892 F.2d 15, 16 (2d Cir. 1989)(failure to file timely objection to
Magistrate Judge's recommended ruling may preclude further appeal to Second Circuit).15
Dated at New Haven, Connecticut, this 31st day of January, 2017.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

15

These documents shall remain in this Magistrate Judge’s Chambers, unless instructed by
Judge Arterton’s Chambers to deliver the documents to them or to file them under seal.
If counsel are confident that a settlement conference before this Magistrate would be
productive (as opposed to merely could be productive), they should contact Chambers
immediately, insofar there are now two time slots that have become open prior to the trial date set
in this case.

17