Doe v. Tippecanoe School Corporation et al
OPINION AND ORDER GRANTING 49 MOTION to Compel Missing Pages from Materials Provided at Defendants' 2015 Professional Development Meeting by Plaintiff Jane Doe. Defendants ORDERED to produce pages 3-9 from "Strategies for Investigation an d Preventing Inappropriate Student-Staff Relationships" by 1/16/2017. Any Brief setting forth argument why the Court should not order Defendants to pay Plaintiff's reasonable fees incurred in bringing this motion must be filed by 1/24/2017. Any Response by Plaintiff to be filed by 2/3/2017.Signed by Magistrate Judge Paul R Cherry on 1/10/17. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
JANE DOE, individually and as mother and
natural guardian of JANE DOE 2,
TIPPECANOE SCHOOL CORPORATION,
JOHN BEEKER, and FRED ROOP,
CAUSE NO.: 4:15-CV-56-RL-PRC
OPINION AND ORDER
This matter is before the Court on a Motion to Compel Missing Pages from Materials
Provided at Defendants’ 2015 Professional Development Meeting [DE 49], filed by Plaintiff on
December 1, 2016. Defendants Tippecanoe School Corporation (TSC), John Beeker, and Fred Roop
filed a response on December 15, 2016. Plaintiff filed a reply on December 22, 2016.
In her motion, Plaintiff seeks a court order compelling Defendants to produce pages 3-9 from
a document titled “Strategies for Investigation and Preventing Inappropriate Student-Staff
Relationships.” The other pages of the document have been produced. Defendants oppose the motion
and argue that the pages at issue were properly withheld because they are covered by both the
attorney-client privilege and the work product doctrine. Defendants also briefly mention a challenge
to the pages’ relevance.
A party 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). A party
may seek an order compelling discovery when an opposing party fails to respond to discovery
requests or has provided evasive or incomplete responses. Fed. R. Civ. P. 37(a). The burden is on
the objecting party to show why a particular discovery request is improper.
Federal Rule of Evidence 501 provides that claims of privilege are governed by federal
common law unless state law supplies the rule of decision, in which case state law applies. In cases,
like the instant case, where both federal and state claims are brought and the discovery at issue
pertains to both claims, federal common law applies. Mem’l Hosp. for McHenry Cty. v. Shadur, 664
F.2d 1058, 1061 n.3 (7th Cir. 1981).
A. Work Product
The work product privilege applies to documents and tangible things that are prepared in
anticipation of litigation or for trial by and for another party or its representatives. Fed. R. Civ. P.
26(b)(3)(A). However, these materials may be discovered if they are otherwise discoverable under
Rule 26(b)(1) and “ 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.” Fed. R.
Civ. P. 26(b)(3)(A). If mental impressions, conclusions, opinions, or legal theories of a party’s
attorney are contained in work product, these are not to be disclosed even if the Court orders
discovery of work product. Fed. R. Civ. P. 26(b)(3)(B). The work product privilege serves “dual
purposes: (1) to protect an attorney’s thought processes and mental impressions against disclosure;
and (2) to limit the circumstances in which attorneys may piggyback on the fact-finding
investigation of their more diligent counterparts.” Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d
612, 621-22 (7th Cir. 2010).
To qualify for protection under the work product doctrine, “the primary motivating purpose
behind the creation of a document . . . must be to aid in possible future litigation.” Binks Mfg. Co.
v. Nat’l Presto Indus., 708 F.2d 1109, 1119 (7th Cir. 1983) (quoting Janicker v. George Washington
Univ., 94 F.R.D. 648, 650 (D.D.C. 1982)); accord Charvat v. Valente, 82 F. Supp. 3d 713, 719 (N.D.
Ill. 2015) (quoting E.E.O.C. v. Commonwealth Edison, 119 F.R.D. 394, 395 (N.D. Ill. 1988)). In
determining whether the doctrine applies, courts “look to whether in light of the factual context ‘the
document can fairly be said to have been prepared or obtained because of the prospect of litigation.’”
Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976-77 (7th Cir. 1996) (quoting Binks Mfg. Co.,
709 F.2d at 1119). The burden is on the party asserting the doctrine’s protection to show that it
applies. Christman v. Brauvin Realty Advisors, Inc., 185 F.R.D. 251, 256 (N.D. Ill. 1999) (citing
Binks Mfg. Co., 709 F.2d at 1118).
The pages at issue here are part of a larger document that was created for the purpose of
training TSC employees. The document’s title and deposition testimony by TSC employees indicate
that the training was meant to enable the employees to investigate and prevent inappropriate
relationships between TSC’s students and staff. Though the document may not have been created
if the instant litigation had not been initiated, the primary motivating purpose behind the creation
of the document was to train staff to identify or avoid future incidents, not for use in defending the
instant lawsuit or any future theoretical lawsuit. Cf. Stalling v. Union Pac. R.R. Co., 01 C 1056, 2003
WL 22071502, at *1 (E.D. Ill. Sept. 4, 2003) (holding that a risk management training manual that
discusses the contingency of litigation is not work product). Defendants have not offered any
indication of how they plan to use the document in this or any other litigation that they may have
reason to anticipate. The work product doctrine and the protections it provides, contained in Federal
Rule of Civil Procedure 26(b)(3), do not apply to these pages.
B. Attorney-Client Privilege
“The attorney-client privilege protects communications made in confidence by a client . . .
to an attorney . . . for the purpose of obtaining legal advice.” Sandra T.E., 600 F.3d at 618.
“Although the attorney-client privilege generally attaches only to statements made by the client,
statements made by the lawyer to the client will be protected in circumstances where those
communications rest on confidential information obtained from the client.” Rehling v. City of
Chicago, 207 F.3d 1009, 1019 (7th Cir. 2000). The privilege is “‘one of the oldest recognized
privileges for confidential communications’ known to the common law.” United States v. BDO
Seidman, 337 F.3d 802, 810 (7th Cir. 2003) (quoting Swidler & Berlin v. United States, 524 U.S.
399, 403 (1998)). “However, because ‘the privilege has the effect of withholding relevant
information,’ courts construe the privilege to apply only where necessary to achieve its purpose.”
Id. (quoting Fisher v. United States, 425 U.S. 391, 403 (1976); citing In re Grand Jury Proceeding
(Cherney), 898 F.2d 565, 567 (7th Cir. 1990)). The party seeking to invoke the privilege has the
burden of establishing all of its elements. Id. (citing In re Grand Jury Proceedings (Thullen), 220
F.3d 568, 571 (7th Cir. 2000); United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997)).“[M]ere
conclusory statements will not suffice to meet that burden.” Allendale Mut. Ins. Co. v. Bull Data
Sys., Inc., 152 F.R.D. 132, 139 (N.D. Ill. 1993).
The attorney-client privilege can be waived. Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095,
1098 (7th Cir. 1987). Express waiver of attorney-client privilege occurs when “information that
would otherwise be privileged is not kept confidential.” Patrick v. City of Chicago, 154 F. Supp. 3d
705, 711 (N.D. Ill. 2015) (citing United States v. Buljubasic, 808 F.2d 1260, 1268 (7th Cir. 1987)).
To gain protection of the attorney-client privilege for the pages at issue, Defendants must
establish that the communication was made in confidence. See BDO Seidman, 337, F.3d at 811.
Defendants have not identified any deposition testimony indicating that the withheld pages are
confidential. Defendants argue that deposition testimony shows that attendance at the meeting was
limited to the attorney presenting the material, TSC’s administrators, and possibly TSC teachers.
The testimony, however, merely states that it was a “teacher’s meeting,” (Burton Dep. 36:9, ECF
No. 49-2), “administrative meeting in August where all of the administrators are there,” (Roop Dep.
12:18-19, ECF No. 49-3), or a mandatory “administrate professional development,” (DeLong Dep.
64:9, 65:11-12, ECF No. 49-4). The testimony is in conflict about who the intended audience was,
and there is no testimony indicating that the audience was restricted to only the invited employees
or that any measures were taken to keep the meeting or the materials distributed at the meeting
Two deponents recalled materials being distributed at the meeting. (Roop Dep. 41:3-4, ECF
No. 49-3; DeLong Dep. 63:21-64:3, ECF No. 49-4). Defendants have not identified deposition
testimony labeling the presentation materials as confidential. The produced portion of the document
at issue does not contain a confidentiality notice, and Defendants do not contend that there is such
a notice in the withheld pages. Defendants’ attorney sent a letter to Plaintiff’s attorney in which he
asserts that the pages at issue “directly concern the subject matter of this litigation and appear to be
based upon confidential communications between [TSC counsel] and TSC.” (Mot. Ex. F, 1, ECF
No. 49-6). No further detail or support for this conclusory statement is provided.
Plaintiff sent a notice for a deposition pursuant to Federal Rule of Civil Procedure 30(b)(6)
to TSC for the purpose of determining who was at the meeting, whether there was an intent that the
information be confidential, the purpose of the meeting and discussion, and distribution and
production of the materials. TSC refused to produce a deponent for the 30(b)(6) deposition. Plaintiff
has not requested that the Court compel the production of a deponent.
As stated above, Defendants bear the burden to show that they are entitled to protection
under the attorney-client privilege. The evidence is not clear regarding who was in attendance at the
meeting, and there is insufficient evidence of intent for the document distributed at the meeting to
be kept confidential. Defendants have not established that the attorney-client privilege protects the
pages withheld from the document.
In their introductory paragraph, Defendants also state that the pages “are of no obvious
relevance.” (Resp. at 1, ECF No. 55). However, Defendants present no argument in support of this
claim. Further, Defendants quote a letter from their counsel, which states in part “Pages 3-9 directly
concern the subject matter of this litigation.” Id. at 5. Defendants have not shown the discovery at
issue to be irrelevant.
D. Reasonable Expenses
Federal Rule of Civil Procedure 37(a)(5) provides that, if a motion to compel is granted, “the
court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated
the motion, the party or attorney advising the conduct, or both to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5).
However, the Court must not order the payment under certain circumstances set forth in the rule. Id.
Based on the foregoing, the Court hereby GRANTS the Motion to Compel Missing Pages
from Materials Provided at Defendants’ 2015 Professional Development Meeting [DE 49] and
ORDERS Defendants to produce pages 3-9 from “Strategies for Investigation and Preventing
Inappropriate Student-Staff Relationships” on or before January 16, 2017.
The Court further ORDERS that any brief setting forth argument why the Court should not
order Defendants to pay Plaintiff’s reasonable fees incurred in bringing this motion must be filed
on or before January 24, 2017. Any response by Plaintiff must be filed by February 3, 2017.
So ORDERED this 10th day of January 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
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