IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

BARBARA JEFFERS and )

JOAN CRAIG, )

Plaintiffs, )

v. ) CASE NO. 3:06-cv-685-WKW

RUSSELL COUNTY BOARD OF )

EDUCATION, et al., )

Defendants. )

PLAINTIFFS JEFFERS’ AND CRAIG’S MOTION TO COMPEL

RUSSELL COUNTY BOARD OF EDUCATION

TO PRODUCE DOCUMENTS

AND

TO STAY DEPOSITIONS

UNTIL DOCUMENTS ARE PRODUCED

COMES NOW Plaintiffs Barbara Jeffers and Joan Craig, under Rule 26(b)(1),

Federal Rules of Civil Procedure, and make this “Plaintiffs Jeffers’ and Craig’s Motion to

Compel Russell County Board of Education to Produce Documents and Stay Depositions

Until Documents Are Produced,” and would show unto the Court as follows:

1. This is a Title VII sexual harassment claim which involves claims of, among other

things, a male principal/supervisor (defendant Charles Nacrelli) lifting a female

school counselor off the floor at school and biting her on the breast, the

principal/supervisor exposing himself to the counselor, and the

principal/supervisor rubbing the legs of a female bus driver and telling her that he

sure would like to “get between” her legs.

2. After complaints, the principal was noticed for employment termination by the

Russell County Board of Education.

3. In anticipation of board action and a possible arbitration hearing on the principal’s

dismissal, the Russell County Board of Education administration conducted an

investigation of charges against Mr. Nacrelli.

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4. The bulk of the investigation was conducted by the superintendent and assistant

superintendent/personnel director.

5. In a discovery request dated May 1, 2007, plaintiffs Jeffers and Craig requested

the results of the investigation, while specifically stating that plaintiffs were not

requesting attorney work product relating to this case.

6. Specifically, plaintiffs’ request, under item 9 of “Request for Production of

Documents,” asked that the defendant Russell County Board of Education:

“Produce copies of any notes, papers and documents created

during the course of any investigation the Russell County Board of

Education has conducted relative to allegations of sexual assault or

harassment made by Plaintiffs against Defendant Charles Nacrelli.

Note: This request does not relate to lawyer work product for this

case, but to the investigation into allegations which preceded the

resignation of Mr. Nacrelli from his position with the Russell

County Board of Education. This would include notes by the

superintendent, assistant superintendent and other officials who

interviewed school employees and/or other persons during the

course of the investigation.”

7. Defendant Russell County Board of Education has refused to produce the

documents requested.

8. Depositions of plaintiffs and various employees/officials of the Russell County

Board of Education were scheduled for Wednesday, August 22, 2007, through

Friday, August 24, 2007.

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9. On Friday, August 17, 2007, defendant Russell County Board of Education’s

counsel delivered to plaintiff counsel’s office certain discovery sought in the May

1, 2007 request. (The Court had extended the August 2007 discovery deadline to

October 2007 after Mr. Nacrelli retained counsel. Plaintiffs’ counsel delivered

discovery requested by defendant Russell County Board of Education to

defendant’s counsel on July 24, 2007, providing ample time to prepare for the

August 22 depositions.)

10. Production from the defendant Russell County Board of Education on August 17,

2007, however, did not include results of the investigation which led to Mr.

Nacrelli’s resignation.

11. The information is clearly discoverable under Rule 26(b)(1), Federal Rules of

Civil Procedure, which states in part:

“Scope in General. Unless otherwise limited by court order, the

scope of the discovery is as follows:

“Parties may obtain discovery regarding any non-privileged matter

that is relevant to any party’s claim or defense – including the

existence, description, nature, custody, condition, and location of

any documents or other tangible things and the location of persons

who know of any discovery matter. For good cause, the court may

order discovery of any matter relevant to the subject matter

involved in the action. Relevant information need not be

admissible at trial if the discovery appears reasonably calculated to

lead to the discovery of admissible evidence...”

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12. The school system’s investigation, which may well have revealed evidence that

others within the system know of sexual advances by Mr. Nacrelli toward

plaintiffs and other female employees, clearly is relevant.

13. Results of the investigation clearly could lead to discoverable evidence under

Rule 26(b)(1).

14. Counsel for the Russell County Board of Education claims privilege, although the

bulk of investigation was conducted by the superintendent and assistant

superintendent for the termination proceedings.

15. Further, those interviewed are neither parties to this litigation nor clients of the

attorney for the Russell County Board of Education. (One member of the Russell

County Board of Education was interviewed, but she is not sued individually.)

16. Moreover, the investigation was not conducted for the case at bar, but rather for

the possible termination of Mr. Nacrelli’s employment.

17. Mr. Nacrelli resigned his job with the school system in 2006, resolving the matter

for which the investigation was conducted.

18. The Board cannot claim privilege from a scheduled arbitration for a case now

before the federal court.

19. According to information provided by the Russell County Board of Education,

then Assistant Superintendent and now Interim Superintendent Lillian Baker

interviewed the following individuals during the course of the investigation:

teachers Allison Gentry, Jamie Evans, and Catherine Beth Gaskin and principals

Brenda Coley and Robert Jason Hopper.

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20. Superintendent Rebecca Lee interviewed plaintiffs Jeffers and Craig and

defendant Nacrelli.

21. Russell County Board of Education attorney Sydney Smith interviewed the

following persons: Barbara Gunter of the Central Office; Assistant Superintendent

Baker, who conducted the aforementioned interviews; John Rudd, Transportation

Supervisor; Rose M. Fowles, secretary at Ladonia Elementary, where the bulk of

the abuse took place; Dillie Elliott, an elected member of the Russell County

Board of Education; and, Dr. Rebecca Lee, then-Superintendent.

22. The information from the investigation is needed by plaintiffs for several reasons.

23. The interviews apparently were conducted in late 2005 and early 2006, since an

arbitrator in the employment termination case was selected on January 4, 2006.

Events relating to Mr. Nacrelli’s conduct were fresher in the minds of the persons

interviewed at that time. (The complaint was not be filed in this case until August

3, 2006, after a Notice of Right to Sue determination had been made by the U.S.

Equal Employment Opportunity Commission.)

24. The persons interviewed may have spoken more freely and openly to Ms. Baker,

Dr. Lee and Ms. Smith than they would to an attorney they do not know or at a

formal deposition.

25. Statements made during the interview process may be used to help elicit relevant

and admissible evidence for the trial.

26. The results of the investigation are needed to check for consistency between the

statements made during the investigation and yet-to-be-conducted depositions.

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27. Defendant Russell County Board of Education claim privilege from producing the

information. A "privilege" generally is defined as a "special legal right,

exemption, or immunity granted to a person or class of persons; an exception to a

duty." Black's Law Dictionary 1215 (7th ed. 1999), as quoted in Price v. Time, et

al., 304 F.Supp.2d 1294 (N.D.Ala. 2004).

28. Noting that even news media representatives could be forced to reveal sources of

information at common law, the Court stated in the Price case:

“The common law position is rooted in the fundamental rule that

each person summoned as a witness in a legal proceeding is under

a duty to answer the subpoena, and to testify truthfully about those

relevant facts known to the witness. Exceptions to that duty have

been recognized grudgingly, because evidentiary privileges do not

aid in the ascertainment of truth. United States v. Nixon, 418 U.S.

683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974) (privileges

"are not lightly created nor expansively construed, for they are in

derogation of the search for the truth"); see also, e.g., Trammel v.

United States, 445 U.S. 40, 50,100 S.Ct. 906, 912, 63 L.Ed.2d 186

(1980)”

29. When the incomplete discovery package was presented to counsel for plaintiffs on

August 17, 2007 for the August 22-24, 2007 depositions, counsel for plaintiffs

canceled depositions until this Motion to Compel could be filed.

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30. Subsequently, counsel for the Russell County Board of Education sent subpoenas

to plaintiffs Jeffers and Craig to compel their testimony at depositions September

12-13, 2007.

31. Plaintiffs need the information from the investigations to adequately prepare for

the depositions.

32. Plaintiffs have no objection whatsoever to having their depositions taken first.

However, in preparing for the depositions, plaintiffs should have access to the

same information that the Russell County Board of Education has at its disposal.

WHEREFORE, plaintiffs pray that the Court will enter an Order:

1. Compelling the defendant Russell County Board of Education to produce

documents sought in the discovery motion, to include any papers, documents

and results of the investigation of sexual improprieties against Mr. Nacrelli

which led to the resignation of the principal/defendant.

2. Staying the deposition testimony of plaintiffs Craig and Jeffers until the

Russell County Board of Education has produced the information.

Respectfully,

/s/W. Don Eddins (EDD005)

Attorney for Plaintiffs

337 E. Magnolia Avenue

Auburn, AL 36830

(334) 821-9981

Facsimile (334) 826-7700

Email: doneddins@charter.net

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CERTIFICATE OF SERVICE

I hereby certify that on -- day of August, 2007, I have electronically filed the

foregoing with the Clerk of Court using the CM/ECF system which will send notification

of such filing to the following:

Sydney S. Smith, Esq. Matthew C. Williams, Esq.

Smith and Smith Estes, Sanders & Williams, LLC

1503 Broad Street 3800 Colonnade Parkway, Ste. 330

Phenix City, AL 36830 Birmingham, AL 35243

/s/W. Don Eddins (ASB-1424-S65W)

Attorney for Plaintiffs

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