Interview Notes and Memoranda Prepared By Attorneys Conducting An Investigation Are Protected By The Attorney-Client Privilege And The Work-Product Doctrine
SANDRA T.E. v. SOUTH BERWYN SCHOOL DISTRICT 100 (March 30, 2010)
In early 2005, local police arrested an elementary school band teacher and charged him with numerous counts of sexual abuse. Within days of his arrest, some of the victims and the victims’ families sued the school district and the principal. In response to the arrest and its attendant publicity, as well as the lawsuit, School District 100’s School Board retained the law firm of Sidley Austin. According to the engagement letter, Sidley Austin was to investigate the administration's response to the allegations of sexual abuse and provide legal services in connection with the investigation. The attorneys interviewed many employees and former employees. They took notes and prepared interview memoranda. The law firm delivered an oral report to the School Board in closed session and submitted a written summary of their investigation, which they marked confidential. After the preparation of the report, Sidley Austin did not participate directly in the litigation. The plaintiffs sought discovery from them, however. The firm turned over a number of documents, but withheld the notes and memoranda on the grounds of the attorney-client privilege and work-product doctrine. The district court ordered the firm to turn over the documents, ruling that the law firm acted as "investigators" -- not as "attorneys." Sidley Austin appeals.
In their opinion, Judges Rovner, Wood, and Sykes reversed. The Court first defined its terms: a) the attorney-client privilege protects communications between a client and its attorney, made in confidence, for the purpose of obtaining legal advice, and b) the work-product doctrine protects documents that are prepared by attorneys in anticipation of litigation. In this case, the district court's views were developed in a series of hearings relating to discovery requests against the School District. Sidley Austin was not provided notice or an opportunity to be heard. The Court concluded that the district court erred by focusing on letters from the School District to parents emphasizing the district’s desire to investigate and discover the truth. The district court did not, on the other hand, focus on what the Court considered the "most important" evidence, the engagement letter. The engagement letter specifically indicated that the investigation was a necessary prerequisite to the delivery of legal advice to the School Board. The engagement letter itself, as well as the conduct of the attorneys, brought this investigation within the attorney-client privilege under the Supreme Court's decision in Upjohn. The Court also concluded that the materials at issue were protected by the work-product doctrine. The district court's contrary conclusion was based upon its treatment of the law firm as investigators. The law firm was hired, at least in part, in response to the filing of the lawsuit. The Court emphasized that the work-product protection may actually be more than just an alternative ground for confidentiality. The attorney-client privilege may not cover all of the witness interviews, since some of the witnesses were not district employees.
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