Attorney-client privilege and work product doctrine protect from discovery documents prepared by attorneys during investigation of teacher’s alleged sex abuse
The U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) has ruled that documents and notes prepared by attorneys from a law firm hired by an Illinois school district to investigate the district’s handling of a teacher’s sexual molestation of a number students were protected from discovery by the attorney-client privilege and the work product doctrine. Robert Sperlik, an elementary school band teacher employed by South Berwyn School District 100 (SBSD), was arrested and charged with several crimes related to sexually molesting female students. The school district hired Sidley Austin LLP to conduct an internal investigation and provide legal advice to the school board. During the investigation, Sidley Austin attorneys interviewed present and former SBSD employees as well as third parties who had never been employed by SBSD. Instead of recording the interviews, the attorneys took notes and later prepared memoranda regarding the interviews for future use in giving legal advice to the school board. Sidley Austin provided an oral report of the firm’s findings to the board during a closed executive session and later followed up with a written “Executive Summary,” marked “Privileged and Confidential,” “Attorney-Client Communication,” and “Attorney Work Product,” that it delivered to the board. At that point, Sidley Austin’s involvement in the case ended, as other attorneys represented SBSD in a suit brought by the parents of the alleged victims.
The parents sought disclosure of the contents of Sidley Austin’s investigation. They subpoenaed Sidley’s senior partner who led the investigation to appear at a deposition and to produce documents. After a motion to quash was denied, Sidley turned over more than a thousand pages of documents, but withheld its notes and memoranda from the witness interviews and other internal legal memoranda prepared in connection with the investigation, claiming these documents were protected by the attorney-client privilege and the work-product doctrine. The federal district court ruled that the board had hired Sidley “as an investigator, not as an attorney,” and ordered the firm to produce the documents.
The Seventh Circuit panel reversed the lower court’s decision. The panel concluded that the district court had erroneously concluded that Sidley Austin had been hired solely to conduct a factual investigation and, therefore, the attorney-client privilege did not apply because the firm was not dispensing legal advice. It found that an engagement letter made it clear that Sidley was hired to provide its legal expertise based on the findings of the investigation, bringing the case squarely within the U.S. Supreme Court’s holding in Upjohn Co. v. United States, 449 U.S. 383 (1981), that “factual investigations performed by attorneys as attorneys fall comfortably within the protection of the attorney-client privilege.” The Seventh Circuit emphasized that the factual investigation conducted by Sidley’s attorneys 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 District should respond.” It noted that Sidley’s report was delivered in an executive session and the written executive summary was clearly marked as privileged and confidential, attorney-client communication and attorney work product. It rejected the parents’ argument that “shielding the contents of Sidley’s interviews with school-district personnel—paid for by the taxpayers and involving a matter of grave public concern—is contrary to the public interest and should not be permitted.” On the contrary, it found that the public interest was better served by application of the privilege because it “allows [government entities] to investigate potential wrongdoing more fully and, equally important, pursue remedial options.”
The panel, likewise, concluded that the district court incorrectly rejected the work product doctrine based on its erroneous finding that Sidley “was hired as an investigator, not an attorney, and therefore its notes of witness interviews and related documents were not protected.” It rejected the parents’ contention that the Sidley investigation’s sole purpose was to quiet the public controversy and prevent similar future occurrences. While the panel acknowledged that the school board was responding to the public outcry, the facts demonstrate that “Sidley was hired to conduct the [SBSD] investigation not merely in anticipation of likely litigation but in response to the actual filing of this lawsuit.” Even though Sidley ultimately was not SBSD’s litigation counsel, its “witness-interview notes and memoranda were plainly prepared ‘with an eye toward’ this pending litigation and therefore qualify for work-product protection.” Finally, the panel rejected the parents’ argument that even if the documents were protected by work product doctrine, they were subject to discovery based on the “substantial need” exception to the doctrine. It pointed out that the parents had admitted that the documents “would really only bolster already existing impeachment evidence contained in their own investigation or in the police record
Sandra T.E. v. South Berwyn Sch. Dist. 100, No. 08-3344 (7th Cir. Mar. 30, 2010)
[Editor’s Note: In a separate suit brought against Karen Grindle, the principal of Pershing Elementary School, where Sperlik was assigned, a Seventh Circuit panel ruled Grindle was not entitled to qualified immunity from female students’ equal protection and substantive due process claims based on the principal’s knowledge and covering up of a teacher’s sexual abuse of female students. The panel concluded that for purposes of surviving the principal’s motion for summary judgment, the students had presented sufficient facts alleging that the principal had violated their clearly established equal protection and due process rights by covering up the teacher’s ongoing pattern of sexually molesting female students. A summary of the opinion is available below.]
NSBA School Law pages on T.E. v. Grindle