Doe et al v. USD 237, the Smith Center School District et al

Filing 189

MEMORANDUM AND ORDER overruling 175 Defendant USD #237's Motion to Reconsider the Magistrate's Order 160 Granting, in part, Plaintiffs' Motion to Compel 102 . By July 5, 2019, defendant shall produce the report at issue to plaintiff or file a motion as described herein. Signed by District Judge John W. Lungstrum on 06/26/2019. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JANE DOE and
ANGELA HARRISON,

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Plaintiffs,
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v.
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USD 237, the Smith Center School District,
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and BROCK HUTCHINSON,
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Defendants.
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_______________________________________)

Case No. 16-2801-JWL

MEMORANDUM AND ORDER
In this matter, plaintiff Jane Doe, a student, and plaintiff Angela Harrison, the
student’s mother, assert federal and state-law claims against defendant Brock Hutchinson,
a teacher at the student’s high school, and against the school district. The claims arise
generally from plaintiffs’ allegations of sexual harassment and retaliation. Plaintiffs
moved to compel the production of a report of a May 2016 investigation of plaintiffs’
complaints to the school, which an attorney conducted at the behest of the school district.
Defendant school district asserted that the report was protected from disclosure by the
attorney-client privilege and work-product immunity. By Memorandum and Order of
April 30, 2019 (Doc. # 160), after in camera review of the report, the magistrate judge
granted the motion and ordered that the report be produced. See Doe v. USD 237, 2019
WL 1925107 (D. Kan. Apr. 30, 2019) (James, Mag. J.). The magistrate judge ruled that

the report was privileged, but that defendant school district had waived that privilege by
asserting the Faragher-Ellerth affirmative defense. See id. at *4-8. The magistrate judge
further ruled that work-product immunity did not apply because defendant had not shown
that the report was prepared in anticipation of litigation, and that defendant waived the
immunity at any rate by the assertion of the affirmative defense. See id. at *8-9.
Defendant school district objects to those rulings (Doc. # 175).1 For the reasons set
forth below, the Court overrules defendant’s objections to the magistrate judge’s order.2

I.

Governing Standard

With respect to a magistrate judge’s order relating to nondispositive pretrial matters,
the district court does not conduct a de novo review; rather, the court applies a more
deferential standard by which the moving party must show that the magistrate judge’s order
is “clearly erroneous or contrary to law.” See First Union Mortgage Corp. v. Smith, 229
F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458,
1461-62 (10th Cir. 1988)); 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). The clearly
erroneous standard “requires that the reviewing court affirm unless it on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.” See Ocelot

Defendant has titled its motion as a “Motion to Reconsider the Magistrate’s
Order,” but it explicitly seeks relief from the “United States District Court Judge” while
invoking Fed. R. Civ. P. 72(a) and D. Kan. R. 72.1.4(a). Accordingly, the Court considers
the motion not as one seeking reconsideration by the magistrate judge, but rather as an
objection to the order of the magistrate judge under the cited rules.
2
In this order, “defendant” refers to defendant school district, which asserted the
privilege and immunity over the report and which filed the instant objections.
1

2

Oil, 847 F.2d at 1464 (quoting United States v. United States Gypsum Co., 333 U.S. 364,
395 (1948)). Arguments not made to the magistrate judge are deemed waived and may not
be raised for the first time on review. See McCormick v. City of Lawrence, Kan., 218
F.R.D. 687, 693 n.4 (D. Kan. 2003) (citing Marshall v. Chater, 75 F.3d 1421, 1426 (10th
Cir. 1996)).

II.

Work-Product Immunity

The magistrate judge rejected defendant’s argument that the report is protected by
work-product immunity. Specifically, the magistrate judge ruled that defendant had failed
to satisfy its burden to show that the report was prepared in anticipation of litigation. The
Court concludes that the magistrate judge did not clearly err in so ruling.
The Federal Rules provide that ordinarily a party may not discover documents
prepared in anticipation of litigation by or for another party.

See Fed. R. Civ. P.

26(b)(3)(A). As defendant concedes, and as courts in this district have consistently held,
the applicable test for anticipation has both a causative (subjective) and a reasonableness
(objective) component. See, e.g., Hale v. Emporia State Univ., 2018 WL 953110, at *6 (D.
Kan. Feb. 20, 2018). The party asserting the immunity bears the burden of establishing
that the immunity applies. See id. That burden “can be met only by an evidentiary showing
based on competent evidence,” and it cannot be discharged “by mere conclusory or ipse
dixit assertions.” See U.S. Fire Ins. Co. v. Bunge N. Am., Inc., 247 F.R.D. 656, 658 (D.
Kan. 2007) (citing McCoo v. Denny’s Inc., 192 F.R.D. 675, 680 (D. Kan. 2000)). The
magistrate judge concluded that defendant failed to establish either component.
3

First, defendant must establish that the report was actually prepared in anticipation
of litigation. In this regard, courts look to “the primary motivating purpose behind the
creation of the document;” documents created in the ordinary course of business or for
other non-litigation purposes are not protected by the work-product doctrine. See id.
(quoting Kannaday v. Ball, 292 F.R.D. 640, 649 (D. Kan. 2013)). A court generally
requires more than mere assertions that documents were created in anticipation of
litigation. See Bunge, 247 F.R.D. at 658 (D. Kan. 2007) (quoting Marten v. Yellow Freight
Sys., Inc., 1998 WL 13244, at *10 (D. Kan. Jan. 6, 1998)). A “blanket claim” that the
immunity applies does not satisfy the asserting party’s burden of proof. See id. (citing
McCoo, 192 F.R.D. at 680).
Defendant relies on essentially-identical affidavits by several school board members
stating that the board received complaints from plaintiffs that it “considered to be
threatened litigation [sic];” and that the board requested the investigation, the report was
generated, and the board received the report “in anticipation of potential litigation.”3 In
her order, the magistrate judge concluded that such affidavits made only a “blanket claim”
that the report was prepared in anticipation of litigation, which is not sufficient under the
law as set forth above. The magistrate judge did not clearly err in making that ruling, as
the affidavits lack any detail about the nature of the supposed threat of litigation and do not

For their own evidence, plaintiffs cite the district superintendent’s testimony that
he was not seeking legal advice in hiring the attorney to conduct the investigation. That
evidence is not particularly persuasive, however, as the report might have been prepared in
anticipation of litigation whether or not the district was seeking legal advice (and plaintiffs
have not challenged the magistrate judge’s conclusion that the report does contain legal
advice).
3

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explain why the board or any of its members considered plaintiffs’ complaints to represent
such a threat. In its two briefs in support of its objections to that order, defendant does not
argue that the courts of this district should not require more than a mere “blanket” or
conclusory claim of anticipation; in fact, defendant does not address this ruling by the
magistrate judge at all. Accordingly, defendant has not met its burden to show that the
report was actually created in anticipation of litigation, and therefore the magistrate judge
did not clearly err in rejecting defendant’s claim of work-product immunity.
The magistrate judge also concluded that defendant failed to establish the objective
component of the required showing. Defendant was required to show that there was a “real
and substantial probability that litigation [would] occur at the time the document[] was
created.” See Hale, 2018 WL 953110, at *6 (quoting Buehler v. Family Dollar, Inc., 2018
WL 296016, at *2 (D. Kan. Jan. 4, 2018)). The threat of litigation must be “real” and
“imminent”. See id. (citing Kannaday, 292 F.R.D. at 648-49)); Bunge, 247 F.R.D. at 658
(quoting Marten, 1998 WL 13244, at *10). “The inchoate possibility, or even the likely
chance of litigation, does not give rise to work product.” See id. (quoting Marten, 1998
WL 13244, at *10).
In attempting to meet its burden with respect to this objective component, defendant
relies on the fact that plaintiff Harrison copied (cc:-ed) an attorney friend, with whom she
had discussed the relevant incidents, on her written complaints to the school board in May
2016.

Defendant also cites the nature of the incidents about which plaintiffs were

complaining. Finally, defendant argues that the facts that the report did not refer to any

5

threat of litigation and that plaintiffs did not file suit for another seven months – which
facts the magistrate judge cited in her order – are not dispositive of this issue.
The Court concludes, however, that the magistrate judge did not clearly err in ruling
that defendant failed to satisfy its burden to show that any threat of litigation was real and
imminent. The facts cited by the magistrate judge may not be dispositive, but they do
undermine defendant’s own evidence. Moreover, defendant’s evidence is not strong.
Defendant has cited only plaintiff’s testimony that she copied the attorney on her
correspondence to the board in the hope that the complaints might be taken more seriously.
She also testified, however, that it was not clear that her attorney friend was representing
her at that time. In addition, the fact that plaintiffs copied the attorney would not
necessarily mean that litigation was more than a mere possibility, as such an act could
reasonably be interpreted to mean that plaintiffs had sought legal advice about how best to
discuss their complaints with the school administration.
Finally, defendant argues that the very nature of the incidents about which plaintiffs
complained gave rise to a reasonable belief that litigation was imminent. The applicable
caselaw, however, forecloses such an argument: “Because litigation can, in a sense, be
foreseen from the time of occurrence of almost any incident, courts have interpreted the
Rule to require a higher level of anticipation in order to give a reasonable scope to the
immunity.” See Marten, 1998 WL 13244, at *10 (quoting Audiotext Communications
Network, Inc. v. US Telecom, Inc., 1995 WL 625962, at *8 (D. Kan. Oct. 5, 1995)), quoted
in Kosjer v. Coffeyville Resources Crude Transportation, LLC, 2018 WL 1151515, at *1
(D. Kan. Mar. 5, 2018). Moreover, this argument by defendant cannot really be evaluated
6

because defendant did not provide the written complaint itself either to the magistrate judge
for consideration with the motion to compel or to the Court for consideration with the
present objections. Thus, there is no basis for a ruling that it was reasonable for the school
board to anticipate litigation from the very nature of the complaints. Accordingly, the
magistrate judge did not clearly err in rejecting defendant’s claim of work-product
immunity on the basis that defendant did not satisfy its burden with respect to either
component of the test for anticipation of litigation.4

III.

Waiver of Attorney-Client Privilege

Defendant also asserted the attorney-client privilege in objecting to production of
the report to plaintiffs. The magistrate judge concluded that the privilege does apply to the
report, and plaintiffs have not challenged that ruling.
The magistrate judge, however, did agree with plaintiffs that defendant waived the
privilege as it applied to the report by asserting the so-called Faragher-Ellerth defense as
an affirmative defense to plaintiffs’ claims. See Faragher v. Boca Raton, 524 U.S. 775
(1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). In that affirmative defense,
which mirrors language from the Supreme Court in Faragher, defendant asserted that it
“exercised reasonable care to prevent and correct promptly any harassing behavior
including retaliation,” and that “plaintiffs unreasonably failed to take advantage of any

In light of this ruling, the Court need not address the magistrate judge’s alternative
ruling that defendant waived any work-product immunity.
4

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preventive or corrective opportunities provided by defendant or to avoid harm otherwise.”5
The magistrate judge ruled that by asserting the Faragher defense based on actions taken
by defendant as a result of the investigation, defendant put the investigation at issue and
therefore waived the privilege.
The magistrate judge’s ruling is supported by the applicable caselaw, as courts have
consistently held that a party that asserts the Faragher defense waives the privilege with
respect to documents concerning the party’s investigation of the plaintiff’s complaints.
See, e.g., Musa-Muaremi v. Florists’ Transworld Delivery, Inc., 270 F.R.D. 312, 317-19
(N.D. Ill. 2010) (citing cases). Defendant has not addressed this weight of authority in its
briefs in support of its objections.
In addition, as discussed by the magistrate judge, courts in this district have adopted
a test for at-issue waiver that was first applied in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash.
1975). See, e.g., Leftwich v. City of Pittsburg, Kan., 2017 WL 1338838, at *3 (D. Kan. Apr.
12, 2017) (citing Hearn). As this Court has noted, that test requires that three conditions
exist for a finding of waiver:
(1) assertion of the privilege was the result of some affirmative act, such as
filing suit, by the asserting party; (2) through this affirmative act, the
asserting party put the protected information at issue by making it relevant
to the case; and (3) application of the privilege would have denied the
opposing party access to information vital to its defense.

5

Plaintiffs appear to argue that defendant waived any privilege also by generally
defending against plaintiffs’ claim that defendant was deliberately indifferent to plaintiffs’
complaints, but they cite only an interrogatory answer to support that argument. In that
answer, defendant merely stated that it requested an investigation in response to plaintiffs’
complaints; it did not assert that it relied on the investigation or any resulting corrective
acts as a defense against plaintiffs’ affirmative claims.
8

See Williams v. Sprint/United Mgmt. Co., 464 F. Supp. 2d 1100, 1104 (D. Kan. 2006)
(Lungstrum, J.) (quoting Frontier Ref’g, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 701
(10th Cir. 1998)). On at least one occasion, a court in this district has applied the Hearn
test to find an at-issue waiver based on the assertion of the Faragher defense. See Rahn v.
Junction City Foundry, Inc., 2000 WL 1679419, at *2 (D. Kan. Nov. 3, 2000).
While acknowledging that courts in this district have consistently applied the Hearn
test, defendant suggests that the Court should apply a stricter test for at-issue waiver. This
Court has previously stated its belief, however, that the Tenth Circuit would adopt Hearn’s
intermediate approach, see Williams, 464 F. Supp. 2d at 1104, and since that time the Tenth
Circuit has applied the Hearn test in applying Oklahoma privilege law, see Seneca Ins. Co.
v. Western Claims, Inc., 774 F.3d 1272, 1276 (10th Cir. 2014). Defendant has not analyzed
the potential alternative tests or explained why the Tenth Circuit would likely favor such a
test over the Hearn test.

Accordingly, the Court concludes that the Hearn test is

appropriately applied in this case.6
The Hearn test for at-issue waiver has been met here. As courts have consistently
held (as noted above), a party puts its investigation at issue by asserting the Faragher
defense based on that investigation. See, e.g., Rahn, 2000 WL 1679419, at *2. Moreover,
assertion of the privilege would deny plaintiffs access to information vital to their ability
to counter defendant’s Faragher defense. See Frontier, 136 F.3d at 701 (requirement that

6

It is not clear that the result would change even if the Court applied a stricter test
requiring that defendant put the attorney’s advice at issue in the litigation, as defendant
essentially put the report at issue here by its reliance on the investigation and resulting
corrective acts for purposes of the Faragher defense.
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the information be “vital” implies that the information is not available from other sources).
As courts have pointed out, if a defendant relies on the reasonableness of its response to
the plaintiff’s allegations, the adequacy of the defendant’s investigation becomes critical,
and the plaintiff (and jury) can only determine the reasonableness of that investigation
through full disclosure of the contents of that investigation. See, e.g., Musa-Muaremi, 270
F.R.D. at 319 (quoting Brownell v. Roadway Package Sys., Inc., 185 F.R.D. 19, 25
(N.D.N.Y. 1999)). Defendant argues that plaintiffs already have access to the witnesses
whose interviews were described in the report, but such access is not sufficient – the
reasonableness of defendant’s process is at issue, and only the report can tell plaintiffs the
scope of the investigation, including which questions the investigator asked of which
witnesses.
In its briefs to the magistrate judge and to this Court, defendant cited three cases in
which courts did not find a waiver of the privilege despite the assertion of the Faragher
affirmative defense. See Robinson v. Vineyard Vines, LLC, 2016 WL 845283 (S.D.N.Y.
Mar. 4, 2016); Mendez v. Saint Alphonsus Reg. Med. Ctr., Inc., 2014 WL 3406015 (D.
Idaho July 10, 2014); Crutcher-Sanchez v. County of Dakota, Neb., 2011 WL 612061 (D.
Neb. Feb. 10, 2011). Before the magistrate judge, defendant cited these cases in part to
dispute the general rule that the assertion of the Faragher defense results in a waiver. In
each case, however, the court recognized that rule, although it then found that the waiver
did not extend to cover an investigation that the defendant was not relying on for the
defense. See Robinson, 2016 WL 845283, at *4-5; Mendez, 2014 WL 3406015, at *4;
Crutcher-Sanchez, 2011 WL 612061, at *9-10. Moreover, the magistrate judge properly
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distinguished those three cases on the basis that here defendant relies on acts informed by
an investigation that occurred while plaintiff Doe was still a student. In again citing those
three cases in its briefs to this Court, defendant declined to address that reasoning by the
magistrate judge.
Defendant’s main argument is that although it may rely for the Faragher defense
on corrective actions that it took in 2016 after the investigation, it does not rely on the
investigation itself, which is distinct from the actions. Defendant has not cited any cases,
however, in which a court made such a distinction when the actions resulted from the
investigation.

Defendant does not dispute that its corrective actions after the 2016

investigation resulted from the investigation. Therefore, contrary to defendant’s argument,
the adequacy of that investigation has been placed at issue, because the reasonableness of
the resulting actions cannot be determined otherwise.
Defendant argues that the mere assertion of the Faragher defense does not
automatically result in a waiver because the defense could be based on acts other than those
related to the privileged material (as in the three distinguished cases). The Court agrees
with defendant that any reliance on actions taken prior to the investigation and the report
would not result in a waiver with respect to the report. Defendant does not stop there,
however, but goes on to argue that it may also rely on its post-report actions without
waiving the privilege. Defendant’s only argument with respect to those actions is that they
were successful (there were no further complaints from plaintiffs), which means that the
adequacy of the investigation is not relevant. That is a separate defense, however – namely,
that defendant was not deliberately indifferent because there were no further problems with
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this teacher. Regardless of how successful the actions proved, if defendant relies on those
post-investigation actions for purposes of its Faragher defense, the adequacy of that
investigation has necessarily been put at issue, and defendant has waived the privilege with
respect to the contents of that investigation. Significantly, defendant has not amended its
answer to withdraw or limit its Faragher defense, nor has it disavowed any application of
that defense to its post-investigation actions in 2016, even after the magistrate judge’s
ruling. Accordingly, defendant must be considered still to be relying on those actions for
purposes of its affirmative defense, and the assertion of that defense results in a waiver of
the privilege with respect to the report at issue. The magistrate judge did not clearly err in
so ruling, and the Court overrules defendant’s objections to that ruling.
Defendant makes two alternative requests, in the event that its objections are
overruled. Defendant requests that the report should be produced “in a redacted form and
limited to attorneys’ eyes only to minimize the prejudice to Defendant of having the mental
impressions and work product of its counsel being revealed to the opposing parties in this
litigation.” The Court denies this request. Because there is no work-product immunity and
the attorney-client privilege has been waived, those doctrines do not provide any basis for
withholding (by redaction) any portion of the report, and defendant has not cited any other
possible legal basis for redaction. In addition, in conclusorily requesting that the report be
limited to attorneys’ eyes only, defendant has not explained why the protective order
presently in effect is not sufficient to maintain the confidentiality of the document.
Defendant also requests “that it be afforded the option of limiting or withdrawing
the affirmative defense in lieu of producing the document and thereby waiving the attorney
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client privilege.” As noted above, defendant has not yet sought to amend its answer or
otherwise to limit the application of its Faragher defense. If defendant now wishes to
withdraw or limit the defense, it should file a motion for leave to amend its answer to that
effect, in which defendant should explain why its limitation or withdrawal means that the
privilege should not be deemed waived with respect to the report. In filing such a motion,
defendant should also address, as supplemental briefing, whether the report contains any
matter not covered by the attorney-client privilege, which portions would then be produced
to plaintiffs whether or not the waiver still applies.7 Finally, in any such motion defendant
should also address the extent to which the privilege could again be waived if defendant at
trial were to rely on its investigation or its actions based on the investigation in defending
against plaintiffs’ affirmative claim that defendant acted with deliberate indifference. On
or before July 5, 2019, defendant must either produce the report to plaintiffs in unredacted
form or file a motion as just described.8

IT IS THEREFORE ORDERED BY THE COURT THAT defendant school
district’s objections to the Magistrate Judge’s Memorandum and Order of April 30, 2019,
are hereby overruled. By July 5, 2019, defendant shall produce the report at issue to
plaintiff or file a motion as described herein.

7

Because she concluded that any privilege had been waived, the magistrate judge
had no occasion to determine whether there were any portions of the report not covered
by the privilege.
8
That deadline supersedes the magistrate judge’s deadline for production of the
report after a ruling by the undersigned.
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IT IS SO ORDERED.

Dated this 26th day of June, 2019, in Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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