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Doe v. Hamilton County Board of Education

United States District Court, E.D. Tennessee, Chattanooga

January 12, 2018

JOHN DOE, et al., Plaintiffs,
v.
HAMILTON COUNTY BOARD OF EDUCATION, et al., Defendants. RICHARD ROE, SR., et al., Plaintiffs,
v.
HAMILTON COUNTY DEPARTMENT OF EDUCATION, et al., Defendants.

          Judge Travis R. McDonough

          MEMORANDUM ORDER

          CHRISTOPHER H. STEGER, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         This matter came before the Court on Friday, January 5, 2018, for a hearing on a Joint Motion to Compel [Doc. 134][1] filed by Plaintiffs John Doe and Richard Roe. Present for the hearing were Attorney Justin Gilbert for John Doe, Attorney Eric Oliver for Richard Roe, Attorneys Charles Purcell and Scott Bennett for the Hamilton County Board of Education ("the Board"), and Attorney Jonathan Taylor for the individual defendants. Plaintiffs seek to compel the Board to produce approximately 130 documents which the Board has asserted are protected under the attorney-client privilege and/or the work-product doctrine. Alternatively, the Board asserts that such documents are protected pursuant to Fed.R.Civ.P. 26(b)(4)(C) which addresses communications between a party's attorney and that party's expert witness.

         The documents withheld by the Board are identified in a privilege log ("the Privilege Log") provided to Plaintiffs [Privilege Log, Doc. 136-4]. Many of the documents withheld from production advert to communications made by or between Attorneys Courtney Bullard and Scott Bennett relating to an investigation conducted and an August 4, 2016 report prepared by Attorney Bullard ("the Bullard Report"), which investigation and report were commissioned by the Board.

         Having considered the arguments of counsel, I conclude that, to the extent the Board is relying upon the attorney-client privilege and the work product doctrine as bases to avoid production of the documents in the Privilege Log, the Board waived such protections when it released the Bullard Report to the public on August 18, 2016. Further, to the extent that the Board is relying upon the belated designation of Courtney Bullard as an expert witness to invoke the protections of Fed.R.Civ.P. 26(a)(2) and 26(b)(4)(C) with respect to documents related to her investigation and report, I find that such reliance is misplaced. Attorney Bullard was not acting as a consulting or testifying expert as set forth in Fed.R.Civ.P. 26(a)(2) when she conducted her investigation and prepared her report. In fact, Attorney Bullard was not designated as an expert witness until well after the documents at issue were created. The protections of Fed.R.Civ.P. 26(a)(2) and 26(b)(4)(C) do not apply to the documents at issue.

         II. BACKGROUND

         These consolidated cases arise from sexual assaults allegedly committed by three members of the Ooltewah High School (OHS) basketball team against other members of the OHS basketball team in December 2015. The Board hired Attorney Courtney Bullard to conduct an investigation and to provide legal advice in anticipation of litigation. [See Doc. 134-1, Letter of Engagement to Bullard from the Board]. To this end, Attorney Bullard engaged in extensive interviews with OHS students, their parents, faculty and staff to prepare her report. She also had frequent conversations with the Board's regular attorney, Scott Bennett, to confer with him about the progress of her investigation. Following her investigation, Attorney Bullard prepared the Bullard Report, a 27 page document dated August 4, 2016, which examined, among other things, whether there was a culture of hazing, bullying, and/or sexual assault in the OHS basketball program and whether coaches and administrators were aware of such culture; whether OHS officials acted appropriately to address the ramifications of the 2015 sexual assaults; and whether OHS officials' response met legal requirements under Title IX. On August 18, 2016, presumably in response to public interest in the underlying events, the Board voted unanimously to release the complete Bullard Report to the public. The Bullard Report was released the following day and remains in the public domain.

         On December 16, 2016, two of the alleged victims of the 2015 assault filed these consolidated actions against, collectively, the Board, the Principal and the Athletic Director at OHS, the coach of the OHS basketball team, and the Title IX Coordinator of the Hamilton County Department of Education. On August 21, 2017, the Board designated Attorney Bullard as an expert witness and submitted to Plaintiffs' counsel the Bullard Report as the "written report" required of a testifying expert pursuant to Fed.R.Civ.P. 26(a)(2)(B). The Board also agreed to disclose to Plaintiffs' counsel copies of witnesses' statements and other underlying materials gathered by Attorney Bullard during the course of her investigation and used by her to prepare the Bullard Report. The Board has not, however, produced approximately 130 documents comprised primarily of communications between Attorneys Courtney Bullard and Scott Bennett relating to Attorney Bullard's investigation and the Bullard Report. The discoverability of these documents led to the present discovery dispute.

         III. DISCUSSION

         A. Expert Witness Disclosure Protection

         Fed. R. Civ. P. 26(b)(4)(C) protects from disclosure certain information related to an expert witness who may testify at trial. Such protection from disclosure encompasses drafts of the expert's report, as well as communications between the attorney and the expert witness. In this case, the Board contends that the communications between the Board's attorney, Scott Bennett, and Courtney Bullard, its testifying expert, should be protected from disclosure because of the constraints imposed by Fed.R.Civ.P. 26(b)(4)(C). The Court disagrees. Attorney Bullard was not originally retained by the Board as an expert witness. Rather, she was retained to act as an attorney for the Board in anticipation of litigation. She was acting as counsel for the Board at the time she performed her investigation and prepared the Bullard Report. The documents identified in the Privilege Log were generated during the time that Attorney Bullard was acting as the Board's attorney, not after she had been designated as an expert witness. Defendant's belated designation of Attorney Bullard as an expert witness does not permit retroactive application of the disclosure protections of Fed.R.Civ.P. 26(b)(4)(C) to documents that were created while she was acting as the Board's attorney and prior to the time that she was designated as an expert witness. The Court will not impose such protections here.

         B. Attorney-Client Privilege

         The Board also maintains that certain documents are protected from discovery by the attorney-client privilege. “Questions of privilege are to be determined by federal common law in federal question cases.” Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998) (citing Fed.R.Civ.P. 501). Because this Court has federal question jurisdiction over this case ...


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