Doe v. Hotchkiss School
Filing
254
ORDER regarding documents reviewed in camera by the Court. In reference to 199 Joint MOTION for Discovery Conference per dkt 189 filed by John Doe, 242 Response filed by John Doe, 239 Status Conference,, 200 Response filed by Hotchkiss School, 206 Response, filed by John Doe, 241 Response filed by Hotchkiss School, 208 Response filed by Hotchkiss School, 205 Response, filed by Hotchkiss School, 201 Reply to Response to Motion filed by John Doe, 209 Response filed by John Doe Signed by Judge Victor A. Bolden on 10/25/2018.(Washington, Gregory)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN DOE,
Plaintiff,
v.
No. 3:15-cv-00160 (VAB)
HOTCHKISS SCHOOL,
Defendant.
RULING AND ORDER ON DOCUMENTS REVIEWED IN CAMERA
John Doe has sued The Hotchkiss School (“Hotchkiss”) for, among other things,
negligence, and fraudulent concealment of severe sexual abuse.
Mr. Doe seeks discovery of documents characterized by Hotchkiss as protected by the
attorney-client privilege, the attorney work product doctrine, or related public policy.
For the following reasons, the Court DENIES IN PART, FINDS MOOT IN PART,
AND GRANTS IN PART the motion to compel disclosure. To the extent that a protective order
is necessary regarding the information ordered disclosed here, the parties shall seek to reach an
agreement on this issue and report back to the Court by November 9, 2018.
I.
FACTUAL AND PROCEDURAL HISTORY
Mr. Doe sued Hotchkiss in February 2015. ECF No. 1. The parties have since been
engaged in a lengthy and fraught course of discovery, which has yet to conclude. Approximately
one year after Mr. Doe sued Hotchkiss, Hotchkiss’s outside counsel, Wiggin & Dana LLP,
retained Carlton Fields to conduct an investigation of reports of sexual misconduct by members
of the Hotchkiss faculty and staff.
On February 7, 2018, Mr. Doe served a subpoena on Carlton Fields seeking “[a]ll
communications, statements, or information received in connection with the ‘independent
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investigation’ concerning reports of sexual misconduct and/or inappropriate ‘hazing’ behavior
towards any Hotchkiss student or employee that occurred prior to April 8, 1987.” Hotchkiss
moved for a protective order or to quash the subpoena Mr. Doe served on Carlton Fields. See
Hotchkiss School v. Doe, 3:18-mc-00037 (VAB), ECF No. 15.
After considering oral and written submissions from the parties, on May 9, 2018, the
Court issued an Order directing the parties to:
submit jointly a stipulation providing for the production of: (a) documents related
to and prepared during the relevant time period for Mr. Doe’s lawsuit and in the
possession of the law firm of Carlton Field as a result of its pending investigation
of sexual misconduct at Hotchkiss prompted by this litigation; and (b) a privilege
log accounting for and describing any other material or information sought by Mr.
Doe but claimed by Hotchkiss to be protected by the attorney-client privilege, the
work product doctrine, or any other relevant privilege, including, but not limited
to, the names, dates, or any other identifying information of witnesses probative
of Mr. Doe’s case, consistent with Federal Rule of Civil Procedure 26(b)(5).
ECF No. 176.
On June 22, 2018, the parties jointly moved for a discovery conference to address a
lingering dispute between the parties over (1) the sufficiency of Hotchkiss’s privilege log
produced under the Court’s May 23, 2018 scheduling order; and (2) the completeness of
Hotchkiss’s production of documents produced under that same scheduling order. ECF No. 199.
The parties were provided with an opportunity to file written submissions with the Court,
and on July 24, 2018, the Court heard oral argument. ECF Nos. 200, 201, 205, 206, 208, 209,
215. Given the challenge of assessing the proportionality of this discovery in the abstract and this
Court’s duty to “protect against disclosure of the mental impressions, conclusions, opinions, or
legal theories of a party’s attorney or other representative concerning the litigation,” Fed. R. Civ.
P. 26(b)(B), the Court conducted an in camera review of the disputed documents and then
resolve the outstanding discovery issues. ECF No. 217.
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Following a telephonic status conference on September 11, 2018, the Court instructed
Hotchkiss to supplement its privilege determination for Exhibit 17 and the last two pages of
Exhibit 122. ECF No. 239. The Court also requested that Mr. Doe also file a response to the
supplemental briefing by Hotchkiss. Id.
II.
STANDARD OF REVIEW
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case . . . .” Fed. R. Civ. P. 26(b)(1).
Even after the 2015 amendments to the Federal Rules of Civil Procedure, “[r]elevance is still to
be construed broadly to encompass any matter that bears on, or that reasonably could lead to
other matter that could bear on any party’s claim or defense.” Bagley v. Yale Univ., No. 3:13-cv1890 (CSH), 2015 WL 8750901, at *7 (D. Conn. Dec. 14, 2015) (citing State Farm Mut.
Automobile Ins. Co. v. Fayda, No. 14-cv-9792, 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 12,
2015)). This Court has “wide latitude to determine the scope of discovery.” In Re Agent Orange
Product Liability Litig., 517 F.3d 76, 103 (2d Cir. 2008); see also Mirra v. Jordan, No. 13-cv5519, 2016 WL 889683, at *2 (S.D.N.Y. Feb. 23, 2016) (“Motions to compel are left to the
court’s sound discretion”).
Under Second Circuit precedent, to invoke the attorney-client privilege, “a party must
demonstrate that there was: (1) a communication between client and counsel, which (2) was
intended to be and was in fact kept confidential, and (3) made for the purpose of obtaining or
providing legal advice.” Musco Propane, LLP v. Town of Wolcott, No. 3:10-cv-1400 JCH, 2011
WL 6300235, at *1 (D. Conn. Dec. 15, 2011) (internal quotation marks omitted) (quoting In re
County of Erie, 473 F.3d 413, 419 (2d Cir. 2007)). “The work product doctrine protects the
discovery of memoranda, correspondence, briefs, mental impressions and personal beliefs
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prepared in anticipation of litigation.” Buck v. Indian Mountain Sch., No. 15 CV 123 (JBA),
2017 WL 421648, at *2 (D. Conn. Jan. 31, 2017) (citing Hickman v. Taylor, 329 U.S. 495, 510–
11 (1947)). The party invoking a privilege must carry the burden of showing its applicability. In
re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379, 384 (2d Cir.
2003) (listing cases).
“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). “For ‘fact’ work
product, that is work product 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).
III.
DISCUSSION
The parties agree that two categories of documents are at issue: (1) communications from
various individuals to Carlton Field about incidents of negligence and fraudulent concealment of
severe sexual abuse at Hotchkiss and (2) the notes and memoranda created by persons associated
with Carlton Fields who interviewed or met with individuals who came forward to report
incidents of negligence and fraudulent concealment of severe sexual abuse at Hotchkiss. From
there, they part ways.
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Mr. Doe argues that he is entitled to all of the documents in the first category and
information that is “purely factual” with respect to the second category. The primary contention
being that the files in question, while undoubtedly confidential, are not privileged. At the same
time, Hotchkiss argues that the former set of documents are privileged, or, alternatively, they
should be protected from disclosure as a matter of public policy, and the latter universe of
documents are work product from which the mental impressions of the attorney who created the
document cannot be readily extracted.
A. The Majority of Documents Requested by Mr. Doe are Privileged
After reviewing the documents in camera, the Court has determined that nearly all of the
requested documents are privileged. Mr. Doe sought “[a]ll communications, statements, or
information received in connection with the ‘independent investigation’ concerning reports of
sexual misconduct and/or inappropriate ‘hazing’ behavior towards any Hotchkiss student or
employee that occurred prior to April 8, 1987.” ECF No. 15. Upon review, the Court has
determined that the vast majority of disputed documents fall into three broad categories: (1) email communications related to the Carlton Fields investigation; (2) attorney notes related to the
Carlton Fields investigation; and (3) memos related to Carlton Fields investigation. All but two
exhibits in question are protected by privilege.
Under well-settled law regarding privilege, those “memoranda 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). And “[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
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processes.” See id. at 399; see also Hildebrand, 194 F.R.D. at 434. Accordingly, Carlton Fields
attorney communications, notes and memorandum of witness interviews, which include mental
impressions and thought processes, are protected work-product, and as a result, have been
appropriately withheld by Hotchkiss.
In order to make a privilege determination related to an investigation, the Court must
examine the role of the attorneys in this case. Specifically, the Court must consider “the duties
they performed, and must determine whether they were providing legal advice or were serving as
independent investigators.” Buck, 2017 WL 421648, at *4. Here, although Mr. Doe argues that
Hotchkiss has improperly withheld responsive communications related to the Carlton Fields
investigation, this too narrowly construes the scope and purpose of attorney privilege protections.
During the course of its representation, Wiggin & Dana, outside counsel for Hotchkiss,
hired Carlton Fields to conduct an investigation and provide legal advice and a report at its
conclusion. The Hotchkiss School v. Doe, No. 18-mc-00081, ECF No. 1. For the investigation,
Carlton Fields attorneys interviewed alumni, took notes, and reduced those impressions into
summary memoranda: quintessential attorney work product. See Buck, 2017 WL 421648, at *2
(“The work product doctrine protects the discovery of memoranda, correspondence, briefs,
mental impressions and personal beliefs prepared in anticipation of litigation”).
Mr. Doe’s requests also included the names of those that voluntarily came forward during
the course of the Carlton Fields investigation and details of meetings between Carlton Fields
counsel and those formers students during the course of that investigation. More specifically, Mr.
Doe seeks e-mails containing communications between Carlton Fields attorneys and Hotchkiss
alumni interviewed during the course of their investigation. The work of attorneys during a factfinding investigation, however, falls comfortably “within the protection of the attorney-client
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privilege.” See Buck, 2017 WL 421648, at *4 (citing Sandra T.E. v. South Berwyn Sch. Dist. 100,
600 F.3d 612, 619 (7th Cir. 2010) (citing Upjohn, 449 U.S. at 401)).
Mr. Doe nevertheless seeks the contents of these interview notes and e-mails, arguing
that Carlton Fields was hired for the purposes of investigating—not providing legal services. But
interviews, notes, and memorandum related to the investigation are prerequisites for the
provision of the legal advice and final report that Carlton Fields and Wiggin & Dana were
retained to provide. The Hotchkiss School v. Doe, No. 18-mc-00081, ECF No. 1. And Carlton
Fields was retained specifically to aid Hotchkiss in its response to claims of sexual abuse and in
anticipation of, and in response to, this very litigation.
Nevertheless, the Court has conducted an in camera review of these documents and
determined that the majority of these documents contain attorney work product. Specifically,
ninety-nine of the one hundred and twenty five exhibits reviewed in camera were attorney notes
and memorandum protected as attorney work product. See In re Grand Jury Subpoena Dated
July 6, 2005, 510 F.3d at 183–84 (“opinion work product reveals the ‘mental impressions,
conclusions, opinions, or legal theories of an attorney or other representative,’ and is entitled to
greater protection than fact work product”) (citing United States v. Adlman, 134 F.3d 1194, 1197
(2d Cir. 1998)). Of the remaining documents, twenty-four are communications made during the
course of the investigation and are protected as attorney-client privilege. See Buck, 2017 WL
421648, at *4 (“factual investigations performed by attorneys as attorneys fall comfortably
within the protection of the attorney-client privilege”). Another document, part of Exhibit 122,
already has been produced, as discussed below. Finally, as discussed below, the remaining
document, Exhibit 17, fails to meet the criteria set forth below for non-disclosure and must be
produced.
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For the previously mentioned reasons, all documents not specifically mentioned in this
Order are privileged, and Mr. Doe’s motion to compel production is DENIED.
B. Exhibit 122
Hotchkiss agrees that the last two pages of Exhibit 122 were not privileged and asserted
that the non-privileged portion already has been produced to Mr. Doe. Because Mr. Doe no
longer contests this disclosure, this issue is MOOT.
C. Exhibit 17
Following the supplemental briefing requested at the September 11, 2018 telephonic
status conference, Hotchkiss argued that Exhibit 17, consisting of settlement agreements between
Hotchkiss and third parties, must be kept confidential under terms that Hotchkiss cannot
unilaterally waive. ECF No. 241.
In response, Mr. Doe argues that Hotchkiss has no basis for withholding the confidential
information given the breadth of the protective order already in place. ECF No. 242. Moreover,
the settlement agreements would likely be highly probative of whether Hotchkiss was on notice
related to the present matter. Alternatively, Mr. Doe is open to a protective order regarding
Exhibit 17 that would redact the names of the victims, allow Hotchkiss to extract the relative and
probative facts to not include attorney impressions, or stipulate to Hotchkiss divulging the
number of reports and incidents of sexual abuse between 1970 and 1987. With respect to
Exhibit 17, the Court agrees with Mr. Doe.
Although Exhibit 17 deals with settlement agreements, these agreements do not fall into
the area of attorney-client privilege or attorney work product. Macdermid Printing Sols. LLC v.
Cortron Corp., 833 F.3d 172, 189 (2d Cir. 2016) (finding that the Second Circuit has
“encouraged district courts to ‘take a liberal view’ toward the withdrawal of a claim of privilege,
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which ‘allows adjudication based on consideration of all the material facts’”) (citing United
States v. 4003–4005 5th Ave., Brooklyn, NY, 55 F.3d 78, 84 (2d Cir. 1995)). Indeed, these
documents have been executed by parties other than Hotchkiss. The Court therefore will require
the disclosure of Exhibit 17 and, to the extent a protective order is necessary, the parties shall try
to reach an agreement on this issue and report back to the Court by November 9, 2018.
IV.
CONCLUSION
For the foregoing reasons, after an in camera review, the Court orders the disclosure of
Exhibit 17. To the extent that a protective order is necessary regarding the information ordered
disclosed here, the parties shall seek to reach an agreement on this issue and report back to the
Court by November 9, 2018.
SO ORDERED at Bridgeport, Connecticut, this 25th day of October, 2018.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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