United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
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.
school district objects to those rulings (Doc. #
175). For the reasons set forth below, the Court
overrules defendant's objections to the
magistrate judge's order.
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)).
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.
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.
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
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.” 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
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).
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.
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
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 ...