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Hale v. Emporia State University (ESU)

United States District Court, D. Kansas

February 20, 2018

EMPORIA STATE UNIVERSITY (ESU), GWEN ALEXANDER, PH.D., DAVID CORDLE, PH.D., JACKIE VIETTI, PH.D., Defendants. Privilege log number Bates number range of document withheld Bates number of documents to be produced



         Plaintiff Angelica Hale brings this action pro se against defendants Emporia State University (“ESU”), Gwen Alexander, David Cordle, and Jackie Vietti. Plaintiff alleges that her former employer, ESU, retaliated against her by terminating her employment because she complained about racial discrimination. This matter is before the Court on Plaintiff's Motion to Compel Production of ESU's Litigation Files and Attorney-Client Communications (ECF No. 63) (“Motion to Compel”). Plaintiff requests an order compelling the production of all the internal investigation documents withheld by ESU and identified on its privilege log. As explained below, the motion is granted in part and denied in part.


         At the August 28, 2017 scheduling conference with the Court, Plaintiff requested that ESU produce a copy of its internal investigation report referred to as the “350-plus page” investigative report disclosed during a press conference held by ESU.[1] Counsel for ESU agreed to early production of the report, subject to redactions for attorney work product and privilege. The Scheduling Order reflected this agreement and set a deadline for production of the report:

Plaintiff requested a copy of Defendant ESU's internal investigation report. After discussion, counsel for Defendants agreed to produce the investigative report to Plaintiff within fourteen (14) days after entry of the protective order, subject to any redactions for attorney-client privilege. Defendants shall file a notice of service at the time they produce the report to Plaintiff.[2]

         On September 27, 2017, ESU produced four discrete sections totaling 33 pages, which it claimed comprised its investigative report. On October 2, 2017, Plaintiff emailed the Court alleging ESU failed to produce the entire 350 pages of ESU's investigation of the reported hate crime. The Court ordered the parties to confer and, if unable to resolve their discovery dispute, Plaintiff could file a motion to compel production of the investigation report from Defendant ESU.[3] Plaintiff filed her motion to compel on October 18, 2017.[4]

         On October 31, 2017, the Court conducted a hearing on Plaintiff's motion to compel ESU's investigation documents. Defendant ESU objected that Plaintiff had failed to confer and asserted a claim of privilege and/or protected work product for many of the documents contained in what it called its litigation file. At the conclusion of the hearing, Defendant ESU was ordered to:

produce to Plaintiff a copy of its 300 page[5] Litigation File discussed during the hearing, subject to any redactions or pages withheld as privileged or protected work product, and a privilege log for any redactions or pages withheld from production. If Plaintiff seeks to compel production of any redacted information or pages withheld, then the parties shall confer in good faith in an attempt to resolve their disputes. If the parties are unable to resolve their disputes after conferring, Plaintiff Hale shall file her motion to compel identifying the redacted information or withheld documents at issue.[6]

         Defendants were also ordered to produce an unredacted copy of the file to the Court for a possible in camera review.

         On November 14, 2017, ESU produced 166 pages of the Investigation Report, and a privilege log which listed 98 documents. The privilege log indicates that ESU is withholding documents on the following bases: (1) attorney-client privilege, (2) attorney work product, (3) “work product of attorney's agent, ” and (4) “mental impressions of agent to general counsel.” Plaintiff filed the instant Motion to Compel on November 22, 2017. She argues all the documents being withheld by ESU are discoverable under the crime-fraud exception to privilege, or any privilege was waived by disclosure of the documents to third parties. She also argues these documents are discoverable because they were predominantly created for the ordinary business purpose of conducting an investigation into the Hales' report of a racial slur written on the notebook of Plaintiff's graduate assistant, and not for the purpose of seeking legal advice.


         Before addressing the privileges and protections ESU asserts for each category of documents withheld, the Court will address Plaintiff's argument that all ESU's withheld documents regarding its internal investigation are discoverable because they fall within the crime-fraud exception to privilege. Plaintiff's main theory is that ESU used its general counsel to enable and aid it in the planning and commission of a fraud which involved public deception. More specifically, Plaintiff argues that ESU and the individual defendants made false statements to the media, the university, and the community when it announced the results of its investigation into Plaintiff's report of a hate crime and racial discrimination. Plaintiff argues ESU's “investigation” was a fraudulent and tortious apparatus created to intentionally mislead the public. Plaintiff identifies forty-two falsehoods allegedly told by ESU and the individual defendants that were used to deceive the public, retaliate against her and her spouse, and chill dissent and opposition to racism at ESU. Plaintiff alleges that as a result of ESU's false statements, her and her spouse's names were added to an online national registry of hate hoax perpetrators and they were shunned on social media.

         Under the crime-fraud exception, “[t]he attorney-client privilege does not apply where the client consults an attorney to further a crime or fraud.”[7] The crime-fraud exception also applies to documents claimed to be protected from discovery as work product.[8] The purpose of the crime-fraud exception is to assure that the seal of secrecy between the attorney and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.[9] The crime-fraud exception has not been extended to torts generally.[10] The party claiming that the crime-fraud exception applies must present prima facie evidence that the allegation of attorney participation in a crime or fraud has some foundation in fact.[11] The determination of whether such a prima facie showing has been made is left to the sound discretion of the district court.[12]

         Plaintiff has alleged ESU's general counsel was involved in the commission of a fraud.

         The elements of fraud under Kansas law are:

(1) The defendant made a false statement concerning an existing and material fact; (2) the defendant knew the statement was false or recklessly made the statement without knowing its validity; (3) the defendant intentionally made the statement for the purpose of inducing the plaintiff to act upon it; (4) the plaintiff reasonably relied and acted upon the defendant's statement; and (5) the plaintiff sustained damage by relying upon the statement.[13]

         With respect to the first and third elements, many of the alleged false statements do not appear to be material statements of fact made by the Defendants for purposes of inducing Plaintiff to act upon them. Moreover, with respect to the fourth and fifth elements, Plaintiff does not allege that she reasonably relied and acted upon ESU's allegedly false statements, or that she sustained damage by relying upon those statements. Nor do any of the exhibits offered by Plaintiff in the briefing on the motion provide a factual basis to support these elements. Plaintiff has thus failed to make a prima facie showing that ESU's actions constituted fraud, let alone that its general counsel's communications were made for the purpose of giving advice for the commission of the allegedly fraudulent conduct.[14]

         A. Whether an In Camera Review is Necessary to Determine the Applicability of the Crime-Fraud Exception

         Having found Plaintiff has not made a prima facie showing ESU's actions constituted fraud, the Court considers whether it must conduct an in camera review of the documents withheld by ESU to determine the applicability of the crime-fraud exception.

         The decision whether to conduct an in camera review is left to the sound discretion of the district court.[15] “The court may and does review documents in camera to determine an alleged privilege, when the party asserting it has made some initial, factual showing that it exists. The court must have some bases or grounds for conducting an in camera review.”[16]

Such review may be useful if there is a genuine dispute between the parties as to the accuracy of the withholding party's description of certain documents. Such review is not, however, to be routinely undertaken, particularly in a case involving a substantial volume of documents, as a substitute for a party's submission of an adequate record in support of its privilege claims.[17]

         In cases where the crime-fraud exception is at issue, the court may conduct an in camera review to determine the applicability of the crime-fraud exception, but only if the party requesting such a review makes a “showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish that the crime-fraud exception applies.”[18] This evidentiary standard requires less than what is required ultimately to overcome the privilege.[19] In making this decision, the court should consider the facts and circumstances of the particular case including, among other things, the volume of materials to be reviewed, the relative importance of the alleged privileged information to the case, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply.[20] In contrast to the Zolin standard for determining whether to conduct an in camera review, the Court notes that Kansas law prohibits review of the actual communications in determining whether the fraud-crime exception applies.[21] Plaintiff's claims in this case arise under federal statute, therefore federal law (instead of state law) governs any claim of privilege. The Court will therefore apply the standard set out in Zolin.

         In light of the deficiencies noted above in establishing all the elements required to show fraud, the Court finds the evidence presented by Plaintiff in her motion and briefing does not establish a “factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish that the crime-fraud exception applies.” Accordingly, the Court declines to conduct an in camera review of the withheld documents for purposes of the crime-fraud exception to attorney-client privilege.


         Plaintiff also argues that ESU's disclosure of its litigation file to third parties negates any attorney-client privilege. She points to the public statement by ESU Interim President, Dr. Jackie Vietti, (“Vietti”) at the September 9, 2015 press conference that ESU decided to have two external independent individuals review the process, findings, and conclusions of its investigation. The reviewers were an attorney with no connection to ESU and an HR consultant. Plaintiff argues this intentional disclosure to the independent reviewers waived any privilege.

         The attorney-client privilege protects from discovery the communications between an attorney and client, made in confidence, under “circumstances from which it may reasonably be assumed that the communication will remain in confidence.”[22] Because confidentiality is critical, the attorney-client privilege will be “lost if the client discloses the substance of an otherwise privileged communication to a third party.”[23] “The confidentiality of communications covered by the privilege must be jealously guarded by the holder of the privilege lest it be waived.”[24] Where disclosure to a third party is voluntary, the privilege is waived.[25]

         ESU asserts that waiver by disclosure to third parties is not an issue here because the only documents ESU provided to the independent reviewers have already been produced to Plaintiff. ESU offers the affidavit of its general counsel, Kevin Johnson, who states ESU “provided the independent consultants with the four investigative reports for review and no other documentation.”[26] The four-part investigation reports reviewed by the independent reviewers were all produced to Plaintiff on September 27, 2017.

         Based upon ESU's representation (through the sworn statements of its general counsel) that it has produced to Plaintiff all documents reviewed by the independent reviewers, the Court denies Plaintiff's request to compel documents on the grounds of third party disclosure.


         ESU groups its withheld documents into five categories: (1) handwritten and typewritten interview notes prepared by its Assistant Director of Human Resources, Ray Lauber (“Lauber”), from his interviews with various individuals during the course of the ESU investigation; (2) drafts of Lauber's investigation reports; (3) internal ESU emails with its general counsel, Kevin Johnson (“Johnson”), regarding legal advice relating to the Hales and his responses; (4) an email and memorandum from Johnson providing legal advice regarding initiation of the investigation to ESU Interim President Vietti and Lauber; and (5) two independent reviews performed by an attorney consultant and human resources consultant. The Court will address the privileges and work-product protections ESU asserts for each category of documents.

         A. Handwritten and Typewritten Interview Notes Prepared by Lauber

         ESU identifies several documents in its privilege log, most of which are undated or dated in July and August 2015, described as either handwritten or typewritten interview notes with various individuals who ESU describes as witnesses interviewed by Lauber. Some of the privilege log entries indicate that Lauber's interview notes are from interviews or meetings with Plaintiff and her husband, Dr. Melvin Hale, (collectively the “Hales”). ESU's log indicates that all interview notes are being withheld because they reflect “work product of attorney's agent.”

         1. Notes from Witness Interviews[27]

         ESU argues the witness interview notes prepared by Lauber fall within the work-product doctrine and their disclosure should not be compelled because Lauber acted as an agent of ESU's general counsel and conducted the investigation at his behest. ESU contends Lauber's notes are documents protected by the work-product doctrine because they were not generated in the ordinary course of business, but in response to the Hales' failure to make a formal request to initiate an investigation while making it well known that they intended to file federal court litigation in the event ESU did not acquiesce to their demands. ESU asserts that the investigation was initiated upon the legal advice of ESU's general counsel, Johnson, after the Hales were encouraged and ultimately refused to file a grievance with ESU in order to initiate the investigation in the first place. ESU claims that Johnson advised Vietti to initiate the request for an investigation into the situation in the School of Library Science and Information Management (“SLIM”).

         Plaintiff argues that the interviews and inquiries by Lauber were never labeled as an official investigation and Lauber made it clear during meetings with Plaintiff that he was conducting fact finding at the direction of Vietti and following the steps of an informal grievance policy. Plaintiff claims that ESU is relabeling its investigation file as a “litigation file” so that it does not have to produce these documents in discovery. Plaintiff also argues that ESU, through Vietti, made public statements that its internal investigation concerned the allegations of a hate crime and racial discrimination at SLIM and was initiated pursuant to institutional policy.

         The work-product doctrine is codified in Fed.R.Civ.P. 26(b)(3)(A):

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) 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.[28]

         If the court orders discovery of any work-product documents, “it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.”[29]

         For ESU to establish protection under the work-product doctrine, it bears the burden to demonstrate “(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.”[30] For work-product protection to apply, “there must be a real and substantial probability that litigation will occur at the time the documents were created.”[31]

         There are two components in determining whether documents are prepared “in anticipation of litigation.”[32] The first is the causation requirement; the document in question must have been created because of the anticipation of litigation (i.e. to prepare for litigation or for trial). The second component imposes a reasonableness limit on a party's anticipation of litigation; the threat of litigation must be “real” and “imminent.”[33] In addition, courts look “to the primary motivating purpose behind the creation of the document to determine whether it constitutes work product. Materials assembled in the ordinary course of business or for other non-litigation purposes are not protected by the work-product doctrine.”[34]

         The parties dispute whether the interview notes taken by the Assistant Director of Human Resources as part of ESU's internal investigation into the racial slur incident at SLIM were prepared in anticipation of litigation, or were created primarily for a non-litigation purpose, such as contemplated by ESU's own policies for investigating racial harassment and discrimination complaints. ESU contends that the primary motivating purpose of the documents was to conduct a thorough investigation of the events in question based on ESU's potential liability. In contrast, Plaintiff contends the primary purpose of the investigation documents was to comply with ESU's institutional policy 3D.0106.05(A)(2). She points to Vietti's September 9, 2015 letter to ESU faculty, staff, and students, which states, “On July 10, 2015, I directed that an internal investigation be conducted by ESU Human Resources ...

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