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Greenfield v. Newman University, Inc.

United States District Court, D. Kansas

December 17, 2019

MANDY GREENFIELD, Plaintiff,
v.
NEWMAN UNIVERSITY, INC., et al., Defendants.

          ORDER

          Teresa J. James, U.S. Magistrate Judge.

         During 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.

         I. Legal Standards

         The 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.[1] 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.”[2] The party asserting the privilege bears the burden of establishing its existence.[3]

         Although 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.[4] The communication is protected from disclosure only if a connection exists between the subject of the communication and the rendering of legal advice, [5]and legal advice “must predominate for the communication to be protected.”[6]

         To 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.”[7] The party asserting the protection has the burden to establish work product protection with a clear showing that it applies.[8]

         II. Analysis

         The 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.[9] That date informs the Court's ruling on certain documents.

         Documents Nos. 12, 13, 56-58, 62-65

         Document 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 has redacted.

         In 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 document.

         Document 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.

         Document 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.

         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 ...


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