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Doe v. USD 237, The Smith Center School District

United States District Court, D. Kansas

June 26, 2019

USD 237, the Smith Center School District, and BROCK HUTCHINSON, Defendants.



         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 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.

         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 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 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. U.S. 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 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 ...

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