Wartell v. Purdue University et al

Filing 47

OPINION AND ORDER: GRANTING 42 MOTION TO STRIKE re 37 Appeal of Magistrate Judge Decision to District Court, by Plaintiff Michael A Wartell; OVERRULING 37 RULE 72 Partial Objection to Magistrate Judge Order Granting Motion to Compel Privileged Document re 36 Opinion and Order; and DENYING AS MOOT 38 MOTION to Stay re 36 Opinion and Order, (Motion for Partial Stay of Magistrate Judge Order Granting Motion to Compel Privileged Document Pending Rule 72 Partial Objection to Order). Signed by Judge Robert L Miller, Jr on 8/28/2014. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MICHAEL A. WARTELL,
Plaintiff
vs.
PURDUE UNIVERSITY, et al.
Defendants

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CAUSE NO. 1:13-CV-99 RLM-APR

OPINION AND ORDER
This case arises from an ungainly set of facts. On this Civil Rule 72(a)
objection to Magistrate Judge Andrew P. Rodovich's ruling on a motion to compel,
this judge becomes the sixth Indiana or federal judge to consider Purdue
University's claim that the attorney-client privilege protects documents sought by
plaintiff Michael A. Wartell. For the reasons that follow, this judge becomes the
sixth to reject Purdue’s argument and order Purdue to produce the documents.

I
Indiana University-Purdue University Fort Wayne Chancellor Michael
Wartell asked for a waiver of the university's mandatory retirement age, and
University President Frances Cordova declined the request. Dr. Wartell says Dr.
Cordova then harassed and discriminated against him on the basis of sex and age,
and Dr. Wartell filed an internal complaint against Dr. Cordova. Such a complaint
ordinarily would trigger internal Purdue procedures for resolving complaints of
discrimination and harassment. Under those procedures, a Purdue employee

would investigate the complaint and, after consulting with a panel chosen by the
advisory committee on equity, the panel would make a written resolution of the
complaint.
It seems that this sort of dispute between the president and chancellor
aren’t routine at Purdue, and Dr. Wartell expressed concern about the fairness of
a process in which people who answer to the president would investigate and
resolve his claim against the president. The board of trustees proposed a special
one-time only method of addressing Dr. Wartell's complaint. Purdue Vice
President Alysa Christmas Rollock proposed that method to Dr. Cordova and Dr.
Wartell in a letter, and both agreed to it. This is the first step of the procedure
outlined in Vice President Rollock's letter:
1.
An independent investigator (preferably an Indiana attorney with a
practice in the area of higher education) (the "Investigator") acceptable to
each of you will be appointed by me to conduct a thorough investigation of
the Complaint, including interviews with each of you and others as the
Investigator may deem appropriate. The Investigator will be asked to work
expeditiously with a goal of concluding the investigation within 45 days.
The investigator was to begin by interviewing Dr. Wartell, then decide
whether any of Dr. Wartell's allegations, if substantiated by a preponderance of
the evidence, would amount to a violation of Purdue's anti-harassment and equal
opportunity policies. If so, the investigator would continue the investigation to
determine whether any allegation was substantiated, whether any substantiated
allegation violated university policies, what sanctions should be imposed on either
side.
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Vice President Rollock was to appoint a panel consisting of three members
of the board of trustees (with the president and chancellor each to have what
amounted to two peremptory challenges). This is what the investigator was to do
with respect to that panel:
3.
The Investigator will prepare and deliver to a three-member panel (the
"Panel") a report that indicates his/her determinations as described in
paragraph 2. The Panel will then meet and members of the Panel shall
consider: (a) the Investigator's report; (b) the Complaint and Respondent's
response; and (c) in the event the Panel requests addition information from
the Investigation or either party, the written submissions provided to the
Panel in response to such requests. The parties will not meet with the
Panel.
The Panel's written decision was to be final.
After the president and chancellor agreed to that procedure, Vice President
Rollock engaged John C. Trimble, a prominent Indianapolis attorney, to serve as
the investigator, to be paid by Purdue. Neither the president nor the chancellor
objected to Mr. Trimble's selection. But it appears that Chancellor Wartell and
Vice President Rollock might have differed in their understanding of the role Mr.
Trimble was to play. Vice President Rollock retained Mr. Trimble as an attorney
for Purdue. Chancellor Wartell didn't learn that Mr. Trimble had been retained in
that capacity until much later.
Mr. Trimble set about the tasks outlined in the vice president's letter. He
interviewed the president, the chancellor, and about twelve others. When he
interviewed Dr. Wartell, Mr. Trimble didn’t disclose that he was acting as Purdue's

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attorney (the limited record before the court doesn't explain why he didn't). Mr.
Trimble prepared his report and submitted it to — and only to — the three-trustee
panel. The panel found that no discrimination occurred, and sent its decision to
the president, the chancellor, and Vice President Rollock.
Dr. Wartell asked to see Mr. Trimble's report and Purdue ultimately denied
his request under the Indiana Access to Public Records Act. Dr. Wartell pursued
the matter to the State Public Access Counselor, who said the attorney-client
privilege justified Purdue's decision not to release Mr. Trimble's report. Dr. Wartell
moved on to the Tippecanoe Circuit Court, which ordered Purdue to release the
Trimble report and associated documents, finding that Purdue was equitably
estopped from claiming either the attorney-client privilege or the work-product
privilege.
Purdue appealed. The Court of Appeals of Indiana unanimously affirmed on
the basis of equitable estoppel. Purdue University v. Wartell, 5 N.E.3d 797 (Ind.
Ct. App. 2014). No previous appellate decision in Indiana had applied equitable
estoppel to the attorney-client privilege. The court of appeals did so because, as
it saw the facts, Purdue had concealed from Dr. Wartell that it had retained Mr.
Trimble as an attorney rather than as an independent investigator, while Dr.
Wartell's guileless understanding of Mr. Trimble's role led Dr. Wartell to sit for an
interview. 5 N.E.2d at 808-809. Purdue’s motion for transfer to the Indiana
supreme court pends.

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While the Indiana litigation was going on, Dr. Wartell filed suit in this court
for sex discrimination, violation of due process, and breach of contract. Inevitably,
Dr. Wartell filed a request for production of Mr. Trimble's report and associated
documents, and Purdue refused to produce them because of the attorney-client
and work-product privileges. Dr. Wartell moved to compel. His original motion
invoked the doctrine of equitable estoppel, but the issues expanded as the parties
briefed the motion before Magistrate Judge Rodovich, to whom all non-dispositive
pretrial motions had been referred. Judge Rodovich ruled against Purdue with
respect to the work-product doctrine, because the report and documents hadn't
been prepared in anticipation of litigation; Purdue doesn't challenge that ruling.
Magistrate Judge Rodovich also rejected Purdue's attorney-client privilege
claim. He set forth the eight-part test our court of appeals articulated in United
States v. White, 950 F.2d 426, 430 (7th Cir. 1991), the first of which is that legal
advice was sought. He looked to the tasks Mr. Trimble was asked to perform.
Magistrate Judge Rodovich noted that Mr. Trimble was to perform investigative
tasks a non-lawyer employee would perform in a less extraordinary case. Mr.
Trimble interviewed people and wrote a recommendation to the three-trustee panel
No lawsuit was pending or imminent. Magistrate Judge Rodovich noted that Mr.
Trimble didn’t tell Chancellor Wartell that he was representing Purdue; an Indiana
attorney generally must make such a disclosure when the organization he
represents might have interests adverse to the officer with whom the lawyer is
dealing. Ind. Prof. Cond. R. 1.13(f). Magistrate Judge Rodovich concluded that
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Purdue had "failed to meet its burden to show how Trimble's activites equated to
legal advice." [Doc. 36, at p.10].
Purdue filed a partial objection (Purdue doesn't challenge the magistrate
judge's decision on the work-product privilege) to the order granting Dr. Wartell's
motion to compel. Fed. R. Civ. P. 72(a). Both sides filed briefs and supplementary
evidentiary materials, and the court heard oral argument on August 27.

II
A
The court begins by addressing some procedural underbrush. First, Dr.
Wartell points to the Indiana court of appeals decision as pertinent to this court's
decision. But the Indiana court of appeals was dealing with the Indiana attorneyclient privilege and its limits, and made no effort to review federal privilege law.
Federal law provides the rule of decision in this case, so federal common law, as
interpreted in the federal courts in light of reason and experience, governs
Purdue's privilege claim. Fed. R. Evid. 501. Dr. Wartell cites Memorial Hospital for
McHenry County v. Shadur, 664 F.2d 1058 (7th Cir. 1981), as authority for the
proposition that federal courts should consider the law of the state in which the
case arises and recognize that state's evidentiary privileges if it can be done at no
substantial cost to federal substantive and procedural policy.1 That’s precisely

1

The court located Mattice v. Memorial Hosp. of South Bend, Inc., 249 F.3d 682 (7th
Cir. 2001), which Dr. Wartell also cited, but sees no applicability to this case.

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what the court of appeals did in the Memorial Hospital case, but the court isn't
persuaded to do so here. This is a district court considering a ruling that will
affect only the parties to Northern District of Indiana civil cause number 1:13-CV99 RLM-APR. A court of appeals is in a considerably better position to add or limit
federal privilege law if a state has a good idea. The Memorial Hospital court looked
to Illinois law, but didn't consider adopting the Illinois privilege for certain
confidential hospital records only for that case or only for cases arising in Illinois;
it considered whether such a privilege would be good for the federal courts in the
Seventh Circuit.
This district court isn't the best venue to decide whether federal evidence
law should add an equitable estoppel exception to the federal attorney-client
privilege.

B
More underbrush needs clearing. With its objection, Purdue filed evidentiary
material that wasn't in the record when Magistrate Judge Rodovich issued his
decision. Dr. Wartell has moved to strike that material. The motion to strike is
significant: amid Purdue's additional evidentiary submission are excerpts from the
deposition of Vice President Rollock and Mr. Trimble in which both say they
understood that Mr. Trimble was being retained as an attorney to render legal
services to Purdue. There might be cases in which courts found no attorney-client
privilege when the principal and the attorney both believed the attorney was
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retained to provide legal services, but they certainly are few in number. Those
deposition excerpts weren’t part of the record before Magistrate Judge Rodovich.
Dr. Wartell has moved to strike all evidentiary material that wasn’t before the
magistrate judge.
The court agrees with Dr. Wartell on this issue. Rule 72(a) of the Federal
Rules of Civil Procedure, which governs objections to a magistrate judge's ruling
on a non-dispositive matter, provides in part, "The district judge in the case must
consider timely objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law." For clear error to be found because the
magistrate judge didn't properly weigh evidence not in the record would take a
case considerably more extraordinary than this one. Purdue contends that district
courts addressing a Rule 72(a) objection have discretion to hear evidence that
wasn't before the magistrate judge, and cites 12 Charles Alan Wright & Arthur
Miller, Federal Practice and Procedure § 3069 (2d ed. 2013), and United States v.
Caro, 461 F. Supp. 2d 478 (W.D. Va. 2006). The treatise's position seems to be
more exhortative than authoritative, and the Caro court, which was considering
a capital case, simply declared in a footnote that such authority exists. If the Caro
court, Wright and Miller, and Purdue are correct, considering previously
extrajudicial material should be the exception rather than the rule, and a good
reason should exist before a court does so.
Purdue says good reason exists here. Dr. Wartell based his motion to
compel solely on the Indiana court of appeals' decision and asked the magistrate
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judge to hold Purdue equitably estopped from withholding the documents on
privilege grounds. There was no reason, Purdue says, for Purdue to have come
forth with evidence that didn't relate to the equitable estoppel argument. Taking
a slightly broader view, this court can't agree.
As Magistrate Judge Rodovich accurately noted, a party claiming protection
of the attorney-client privilege carries the burden of demonstrating its
applicability. United States v. White, 950 F.2d 426, 430 (7th Cir. 1991). Purdue
couldn't withhold the requested documents simply because the federal courts
don't recognize equitable estoppel in this context; Purdue could only withhold the
documents if they were privileged. At least with respect to the attorney-client
claim, it's hard to imagine anything more pertinent to that burden than deposition
testimony from both the attorney and the vice president who retained the attorney
that both thought an attorney was being hired to provide legal services.
The parties had a full opportunity to put before the magistrate judge
whatever information either thought pertinent. Application of the clear error
standard in this case demands that review be limited by the information before the
magistrate judge. The court grants Dr. Wartell's motion to strike the additional
materials.

C
Purdue says that in any event, it is complaining about errors of law, and
Rule 72(a) allows district courts to modify or set aside a magistrate's non9

dispositive order that is contrary to law. Purdue argues that Magistrate Judge
Rodovich made three errors of law. The court already has addressed one of those:
that the Magistrate Judge erred in deciding the motion on a ground the parties
hadn't raised.

D
Purdue says Magistrate Judge Rodovich committed an error of law by
holding that an attorney must act as an “advocate” for the attorney-client privilege
to apply. This court can't find such a holding in the magistrate judge's opinion
and order. Stripped of citations, here is what Magistrate Judge Rodovich wrote:
The attorney-client privilege is not applicable solely because Trimble
was an attorney. Rather, the court must examine his role to determine
whether he was providing legal advice or acting as an independent
investigator. To do so, the court must consider the duties the attorney
performed. Tasks such as interviewing, inspecting, and engaging in
conversations prior to the imminent prospect of litigation generally remove
the attorneys activities from the purview of the attorney-client privilege.
Here, it is apparent that Trimble acted in the role of an independent
investigator rather than as an attorney. Generally, Purdue selected an
employee to conduct investigations. Trimble filled this role and performed
the functions that the non-attorney employee generally would have
completed. He interviewed employees and prepared a report for the trustee
panel with his recommendations. At this time, Wartell had not filed a
lawsuit, and there is no evidence that the present lawsuit was imminent. In
fact, if Purdue would have decided in Wartell's favor upon receipt of the
report, the lawsuit likely would have been avoided. Moreover, Wartell and
Cordova had agreed that the investigation would be conducted by an
"independent investigator." The term "independent" suggests that the
investigator would not be working on behalf of either party, but rather
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would be neutral. Trimble also understood that he "owed it to everyone
involved to do a thorough, competent, and fair investigation."
The record does not reflect that Trimble was giving legal advice by
conducting the investigation and report. Rather, he was conducting an
internal investigation so that Purdue could determine how to respond prior
to the prospect of litigation. This further is supported by the fact that
Trimble did not disclose that he was acting as Purdue's advocate despite
having an obligation to do so if he was acting in such a role. Purdue has not
identified any legal advice that Trimble offered. For all ofthese reasons,
Purdue has failed to meet its burden to show how Trimble's activities
equated to legal advice. The court GRANTS Wartell's motion to compel.
Purdue is DIRECTED to produce the report within fourteen days.
[Doc. No. 36 at pp. 9-10].
The holding Purdue cites as a legal error simply isn't there. The only time
the opinion uses the word "advocate" is when the opinion notes that Mr. Trimble
didn't tell Dr. Wartell "that he was acting as Purdue's advocate." It appears to this
court that the magistrate judge simply used "advocate" as a synonym for "counsel"
or "attorney." The magistrate judge didn’t say, much less hold, that an attorney
must be acting as an “advocate” (as opposed to, say, a “counselor”) for the
privilege to apply.

E
Finally, Purdue contends that the magistrate judge erred as a matter of law
by not following (or even discussing with respect to the attorney-client privilege)
the court of appeals' decision in Sandra T.E. v. South Berwyn Sch. Dist. 100, 600
F.3d 612 (7th Cir. 2010). In Sandra T.E., a law firm's investigative materials for
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a school were deemed privileged, Purdue argues, compelling a similar holding
here. But this is a far different case than was Sandra T.E.
Sandra T.E. stemmed from criminal charges against a school teacher for
molesting a number of elementary school students over a period of years. The
School Board called in a law firm — Sidley Austin LLP — and sent letters to
parents saying that Sidley Austin had been hired to conduct an investigation.
Lawsuits were filed against the School Board for failing to protect the students,
and the plaintiff parents moved to compel the School Board to produce the report
of Sidley Austin's investigation and surrounding documents. Sidley Austin doesn't
appear to have been a party to the hearing on the motion to compel. The district
judge, considering evidence from the parents and the school board, found that the
Board had hired Sidley Austin simply to investigate — because that's what the
Board said in its letter to all parents. It soon became clear that the requested
documents weren't with the Board, but rather were with Sidley Austin, so the law
firm finally was invited (by way of a rule to show cause) to join the party. Sidley
Austin presented the engagement letter between Sidley Austin and the Board,
which engaged the firm not merely to investigate, but also to evaluate the legal
sufficiency of the Board's compliance procedures and to provide legal services to
the Board in connection with the investigation. The engagement letter didn't
resonate with the district judge, who simply announced that his earlier privilege
ruling would stand, and that Sidley Austin had to produce the documents.

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The court of appeals reversed. It found that the district court had erred in
tacitly disregarding the engagement letter and giving almost conclusive weight to
the letter the Board sent to parents. The court of appeals stressed three facts on
its way to finding the privilege applicable: (1) the engagement letter itself – “the
most important piece of evidence,” 600 F.3d at 619, (2) the report to the Board
was “Privileged and Confidential,” “Attorney-Client Communication,” and
“Attorney Work Product,” 600 F.3d at 620, and (3) the attorneys’ method of
conducting interviews that were part of the investigation.
As to the last point, the court of appeals noted that under Upjohn Co. v.
United States, 449 U.S. 383 (1981), attorneys for an organization must disclose
their role when interviewing agents of the organization whose interests might be
adverse to the organization.
. . . the conduct of Sidley attorneys during the investigation confirms that
they were acting in their capacity as attorneys. During the confidential
interviews with school-district employees, the attorneys provided so-called
“Upjohn warnings” emphasizing that Sidley represented the School Board
and not the employee and that the SCHOOL board had control over whether
the conversations remained privileged.
600 F.3d at 620.
Those observations help explain another part of Magistrate Judge
Rodovich’s opinion that Purdue sees as error. The magistrate judge noted that
when Mr. Trimble interviewed Chancellor Wartell, Mr. Trimble didn’t disclose any
attorney-client relationship with Purdue. Tossing Mr. Trimble at least in the
direction of the bus, Purdue argues that the magistrate judge let Mr. Trimble,
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through his omission, waive the attorney-client privilege – a privilege that belongs
to, and can only be waived by, the client. The magistrate judge was following
(without citing) the analysis employed in Sandra T.E.. That Sidley Austin lawyers
gave “Upjohn warnings” was evidence that they were acting as the school board’s
attorneys; that Mr. Trimble didn’t do so was evidence that he was acting merely
as an investigator, rather than as Purdue’s attorney.

F
This leads to the cruces of Pudue’s argument to this court: that under
Sandra T.E., the privilege covers attorneys performing investigations for clients,
and that the existence of the attorney-client privilege is a question of law (and so
properly before this court on a Rule 72(a) objection). As to the first, this court
reads Sandra T.E. differently. Sandra T.E. was very fact-specific: under those
specific facts, the investigation was an essential part of the legal services and
advice Sidley Austin was retained to provide to the school board. Under that set
of facts, but not under all sets of facts, the attorney-client privilege can protect the
attorneys’ records of the interviews and eventual advice to the client. Nothing in
Magistrate Judge Rodovich’s decision runs afoul of that principle. The magistrate
judge looked at what was available to him. There was no engagement letter in the
record, nor any indication that the report to the three-trustee panel was labeled
“Privileged and Confidential” or “Attorney-Client Communication”. Instead, there
was Vice President Rollock’s letter indicating that an independent investigator
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would be appointed, with no hint that the “independent investigator” would be an
attorney owing a fiduciary duty to Purdue, and Mr. Trimble’s conduct of the
interview with Chancellor Wartell, which was consistent with the role of an
investigator rather than the role of an attorney for Purdue.
Finally, Purdue points to Sandra T.E. for the proposition that whether the
attorney-client privilege exists is a question of law. 600 F.3d at 618. The court
agrees, but that principle leads Purdue to a conclusion this court can’t reach.
Whether the privilege applies in light of a given set of facts is a question of law
that courts review de novo, but determination of the facts against which the legal
question is to be answered is, under Rule 72(a), reviewed for clear error. Given the
evidentiary materials before him, there was no clear error in Magistrate Rodovich’s
finding that, “The record does not reflect that Trimble was giving legal advice by
conducting the investigation and report. Rather, he was conducting an internal
investigation so that Purdue could determine how to respond prior to the prospect
of litigation.” [Doc. 36, at p.10]. Having found that Purdue wasn’t seeking legal
advice from Mr. Trimble, there was no clear error in the holding that the attorneyclient privilege doesn’t protect the communications between Mr. Trimble and
Purdue.

III
For the foregoing reasons, the court GRANTS the plaintiff’s motion to strike
evidentiary material that wasn’t before the magistrate judge [Doc. No. 42] and
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OVERRULES the defendants’ partial objection [Doc. No. 37] to the magistrate
judge’s grant of the plaintiff’s motion to compel. The defendants’ motion for a
partial stay of Magistrate Judge Rodovich’s order pending disposition of their Rule
72 objection [Doc. No. 38] is DENIED as moot.
SO ORDERED.
ENTERED:

August 28, 2014
/s/ Robert L. Miller, Jr.
Robert L. Miller, Jr., Judge
United States District Court

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