United States District Court, D. Kansas
J. James, U.S. Magistrate Judge.
the November 22, 2019 hearing on Plaintiff's Motion to
Compel (ECF No. 67), the Court considered objections raised
by Defendant Newman University, Inc. (Newman) to certain of
Plaintiff's document requests on grounds of
attorney-client privilege and work product. The Court
determined it appropriate to review in camera the documents
identified in Newman's privilege log numbers 12, 13,
56-58, and 62-65, and directed the parties to simultaneously
submit arguments regarding the work-product nature of
document numbers 68-71. The parties made their timely
submissions. The Court has reviewed each of the documents and
rules as follows.
essential elements of the attorney-client privilege are: (1)
where legal advice of any kind is sought (2) from a
professional legal advisor in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by
the legal advisor, (8) except if the protection is
waived. Under the law of this circuit, an
attorney's communication to a client is also protected if
it is “related to the rendition of legal services and
advice.” The party asserting the privilege bears
the burden of establishing its existence.
the privilege protects disclosure of substantive
communication between attorney and client, it does not
protect disclosure of the underlying facts by those who
communicated with the attorney. The communication is protected
from disclosure only if a connection exists between the
subject of the communication and the rendering of legal
advice, and legal advice “must predominate
for the communication to be protected.”
establish work product protection, a party must show that
“(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.” The party asserting the protection has the
burden to establish work product protection with a clear
showing that it applies.
Court has determined that for purposes of Newman's claim
of work product protection, Defendant has not demonstrated
that any party anticipated litigation earlier than December
1, 2017, the date on which the Newman board of trustees voted
to engage counsel to conduct investigations regarding the
Title IX investigation. That date informs the Court's
ruling on certain documents.
Nos. 12, 13, 56-58, 62-65
No. 12 is an email from Teresa Bartels, Newman board chair
and officer, to counsel seeking legal advice about an
attached document from Plaintiff. The substantive portion of
the email is protected by the attorney-client privilege and
the Court will not direct Newman to disclose the portion it
Document No. 13, Newman has redacted from a December 20, 2017
email from Ms. Bartels to counsel the sender, recipient, and
message that says in full “FYI.” The redacted
content does not seek legal advice and is not work product.
The redacted portion does nothing more than show that Newman
shared Plaintiff's amended whistleblower complaint with
counsel. Newman shall produce an unredacted version of the
No. 56 is not protected as attorney-client or work product.
The document merely conveys underlying facts. The notes
containing those facts are dated and appear to have been
taken November 22-24, 2017, which is earlier than Newman has
established any party anticipated litigation. Newman shall
produce an unredacted version of the document. Document No.
57, however, is a communication from Bartels to counsel and
between counsel and is appropriately redacted.
No. 58 is a letter to Jennifer Gantz, Newman's Vice
President for Finance and Administration, from President
Noreen Carrocci. The two phrases Newman has redacted are not
attorney-client communications because they make reference to
no express or apparent communication with counsel. Neither
are they work product, as there is no indication this
document was prepared in anticipation of litigation. Newman
shall produce an unredacted version of the document.
No. 62 is a three-page document. The first page is not
protected by attorney-client privilege, as it is not a
communication by or to a lawyer. The remaining two pages are
communications between attorney and client and are
privileged. Newman shall ...