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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

SHELLEY GIPSON, §

§

PLAINTIFF, §

§

VS. § CA NO. 4:22-CV-00730-P

§

WEATHERFORD COLLEGE OF THE PARKER §

COUNTY JUNIOR COLLEGE DISTRICT, §

§

DEFENDANT. §

INTRODUCTION

Plaintiff contends she only needs (and is entitled to) answers to the 

following two questions from Ralinda Stone, former Executive Director of 

Human Resources for the college. ECF 60, pp. 9-10:

[W]ith regard to Ms. Stone, Plaintiff only seeks to learn:

(1) If Ms. Stone was ordered or instructed by Mr. Curlee to not conduct 

an investigation into Plaintiff’s internal complaint of harassment; and 

(2) If Mr. Curlee told Ms. Stone that he would notify Dr. Farmer that 

Plaintiff had submitted an internal complaint of harassment.

Additionally, Plaintiff claims she needs (and is entitled to) answers to the 

following two questions from the General Counsel, Dan Curlee. Id., p. 10:

[W]ith regard to Dan Curlee’s deposition, Plaintiff only seeks to learn:

(1) If Mr. Curlee ordered or instructed Ms. Stone to not conduct an 

investigation into Plaintiff’s internal complaint of harassment; and 

(2) If Mr. Curlee notified Dr. Farmer (the alleged harasser) that Plaintiff 

had submitted an internal complaint of harassment against him and, if 

so, when.

The latter question is answered by Mr. Curlee’s supplemental Declaration,

being concurrently filed with this Reply. ECF 73-1, p. 4. Mr. Curlee had no

conversations whatsoever with Dr. Farmer concerning Plaintiff’s complaints to 

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Stone or Finley before the college received notice of Plaintiff’s EEOC Charge from 

the EEOC on January 31, 2022. Period. Thus, there is no need to depose the 

General Counsel in order to obtain the answer to that question.

The remaining three questions specifically seek disclosure of privileged 

communications during the March 4, 2021, specially called, closed-door 

meeting of Stone and Adam Finley, then Executive Dean of Students with the 

college and Title IX Compliance Officer, with the college’s General Counsel.

Communications between Finley, Stone, and the General Counsel during the 

meeting are, as a matter of law, privileged attorney client communications of 

the college and Plaintiff has failed to establish any waiver of the privilege. Good 

cause exists for issuance of a protective order to preclude Plaintiff’s persistent 

efforts—both through depositions and through ex parte communications with 

Stone or other former college employees—to seek privileged information.

ARGUMENT

I.

BY PLAINTIFF’S OWN ADMISSIONS, THE DISCOVERY PLAINTIFF 

SEEKS IS IRRELEVANT AND NOT REASONABLY CALCULATED TO 

LEAD TO THE DISCOVERY OF ANY EVIDENCE.

Plaintiff argues that she should be entitled to discovery of communications 

during the specially called, closed-door meeting on March 4, 2021, between the 

General Counsel of the college and two senior administrative officials because—

according to Plaintiff—any privilege attaching to the communications has been 

waived by Defendant’s inclusion of the Ellerth-Faragher1 affirmative defense in 

its Amended Answer (ECF 12, p. 15 Sixth Affirmative Defense). ECF 60 (pp. 13-

1 See Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998); Burlington 

Indust., Inc. v. Ellerth, 524 U.S. 742 (1998).

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15). That argument is foreclosed because Plaintiff’s admissions in her own prior 

filings make the Ellerth-Faragher affirmative defense wholly irrelevant.

The Ellerth-Faragher defense is relevant, if at all, only to a claim of hostile 

environment sexual harassment. See, e.g., Casiano v. AT&T, 213 F.3d 278,

283-84 (5th Cir. 2000) (explaining the “Ellerth/Faragher road map”). However, 

in this case, Plaintiff has expressly disavowed that she is making a claim of 

hostile environment sexual harassment. Rather, Plaintiff has expressly limited

her claim to one of alleged quid pro quo sexual harassment. ECF 53 (p. 1: 

“Plaintiff’s claim for sexual harassment . . . is based on quid pro quo 

harassment (rather than hostile work environment)[.]” (emphasis added)); ECF 

54 (p. 12: “Plaintiff is pursuing a claim for quid pro quo harassment[.]”).

II.

COMMUNICATIONS DURING THE MARCH 4, 2021, CLOSED-DOOR 

MEETING ARE, AS A MATTER OF LAW PRIVILEGED ATTORNEYCLIENT COMMUNICATIONS.

A. THE COMMUNICATIONS ARE CLEARLY PRIVILEGED:

“For a communication to be protected under the privilege, the proponent 

‘must prove: (1) that he made a confidential communication; (2) to a lawyer or 

his subordinate; (3) for the primary purpose of securing either a legal opinion 

or legal services, or assistance in some legal proceeding.’” EEOC v. BDO USA, 

L.L.P., 876 F.3d 690, 695 (5th Cir. 2017) (quoting United States v. Robinson, 

121 F.3d 971, 974 (5th Cir. 1997). As a matter of law, Defendant has 

established each of these elements regarding communications during the 

March 4, 2021, meeting.

First, the meeting was clearly confidential. It was a private, closed-door 

meeting between Finley, Stone, and the General Counsel.

Second, the communications were between two senior administrative 

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officials of the college and the college’s General Counsel.

Third, seeking the General Counsel’s advice, legal opinion(s), and 

assistance regarding the information which had been provided to Finley and 

Stone by Plaintiff and the appropriate course of action, if any, to take based 

upon that information and applicable law and college policies, was not only the 

primary purpose of the meeting, it was the sole purpose. ECF 73-1, pp. 1-4. 

The advice and opinion(s) expressed by the General Counsel in the meeting 

involved analysis and application of law, e.g., Title VII of the Civil Rights Act of 

1964 (“Title VII”), 42 U.S.C. §§ 2000-e, et seq., and Title IX of the Education 

Amendments of 1972, as amended, 20 U.S.C. § 1681, and the college’s policies 

and procedures to the facts presented. Id., pp. 3.2, 3 See, e.g., Scoggins v. Floyd 

Healthcare Mgmt., 2016 WL 11544904, at 3 (N.D. Ga. Mar. 28, 2016) (“Nothing 

indicates that the primary purpose of the communications at issue was not 

legal advice.”).

2 Nevertheless, Plaintiff contends the three remaining questions to which 

she claims to need answers from Finley and Stone do “not implicate attorney 

client privilege.” ECF 60, pp. 9-10. However, Plaintiff fails to explain how 

communications during the meeting “do not implicate attorney client 

privilege”—clearly they do. Each of the questions to which Plaintiff seeks 

answers expressly seek disclosure of communications between Finley and 

Stone with the General counsel during the meeting. Plaintiff cites no authority 

for the proposition that the questions “do not implicate attorney client 

privilege.”

3 Plaintiff also contends that communications during the meeting are not 

privileged simply because the General Counsel was administratively Stone’s 

supervisor. Plaintiff cites no authority to support the proposition that an 

otherwise privileged communication somehow loses its privileged character 

whenever there is a superior-subordinate relationship between a lawyer and 

the person seeking legal advice. Moreover, the contention is irrational. Under 

Plaintiff’s theory, no communication between a lawyer and the attorney’s legal 

assistant would be privileged because the attorney was the legal assistant’s 

supervisor.

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B. THE CASES ON WHICH PLAINTIFF RELIES ARE INAPPOSITE:

In support of Plaintiff’s contention the communications between Finley, 

Stone, and the General Counsel on March 4, 2021, are not privileged, Plaintiff 

relies upon two cases which are inapposite. Indeed, one of the cases supports

the conclusion that the communications were privileged.

Initially, Plaintiff claims “[m]erely including an attorney as a recipient on a 

communication or inviting an attorney to a meeting does not necessarily make 

that communication privileged,” citing In re Cent. Gulf Lines, 2000 WL 

1793395, at 1 (E.D. La. Dec. 4, 2000); Nedlog Co. v. ARA Servs., Inc., 131 

F.R.D. 116, 117 (N.D. Ill. 1989). ECF 60, pp. 7-8. Both cases are inapposite.

 First, the issue raised in Defendant’s motion does not involve any written 

communication whatsoever, much less one “merely copied” to the 

General Counsel. The question involved in both cases cited by Plaintiff 

was the application of privilege to documents, an issue not relevant to 

Defendant’s motion.

 Second, Curlee was not merely “invited” to “attend” a meeting. Rather, 

the closed-door, private, confidential meeting was specifically requested

by Finley and Stone with Curlee, in Curlee’s office. Moreover, neither 

case cited by Plaintiff supports Plaintiff’s assertion that “merely . . . 

inviting an attorney to a meeting does not necessarily make that 

communication privileged.” The words “meet” or “meeting” do not even 

appear in either case.

 Third, in fact, the only relevant portion of In re Cent. Gulf Lines, 2000 WL 

1793395, at 1 states: “The general rule is that communications made by 

employees to corporate counsel, including in-house counsel, for the 

purpose of counsel rendering legal advice to the corporation, are 

protected by the attorney-client privilege.”

III.

PLAINTIFF HAS FAILED TO ESTABLISH ANY WAIVER OF THE 

PRIVILEGE ATTACHING TO THE COMMUNICATIONS AT THE 

MARCH 4 MEETING.

As suspected, Plaintiff contends that the college has waived the privilege 

attaching to the communications during the March meeting by asserting the 

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Ellerth-Faragher affirmative defense. ECF 60, pp. 13-15. None of the cases cited 

by Plaintiff (id., p. 14) support that proposition. Indeed, each of the cases cited 

by Plaintiff was decided before Ellerth and Faragher were even decided by the 

Supreme Court in 1998.

Plaintiff’s Response fails to address any of Defendant’s arguments for why 

there has been no waiver by assertion of the Ellerth-Faragher defense, or any of 

the cases cited in Defendant’s brief, i.e.:4

 No waiver occurs unless the employer relies on an internal investigation 

as a part of its defense. See, e.g., Ambrose-Frazier v. Herzing Inc., 2016 

WL 890406, at 5 & n. 53 (E.D. La. Mar. 9, 2016).

 The college is not relying for its defense on any internal investigation.

Rather, the defense is grounded on (1) the existence of the college’s antidiscrimination/harassment policies; (2) dissemination of those policies to 

Plaintiff when hired; and (3) Plaintiff’s unreasonable failure to “take 

advantage of the opportunities provided by the [college and] avoid harm 

otherwise,” by making a prompt complaint of the alleged harassment. 

Faragher, 524 U.S. at 778, 806.5

 No waiver occurs unless counsel is actively participating in or personally 

conducting the investigation. See e.g. McKenna v. Nestle Purina PetCare 

Co., 2007 WL 433291 (S.D. Oh. Feb. 5, 2007) (the attorneys “did not 

personally engage in the investigation, conduct interviews, or make 

decisions” or “otherwise participate in the investigation itself”).

 Even where a waiver of any sort occurs as a result of assertion of the

4 Moreover, as explained supra, the defense is only applicable in the face of 

a claim of hostile environment sexual harassment, and Plaintiff has specifically

disavowed making any such claim in this lawsuit.

5 See Spanel v. Cent. Cmty. Coll., 2021 WL 5907930, at 3 (D. Neb. Dec. 14, 

2021) (denying plaintiff’s motion to compel counsel’s legal advice; no waiver 

where the college’s Ellerth-Faragher defense was “grounded in CCC’s policies,

Plaintiff’s awareness of those policies, and Plaintiff’s refusal to cooperate with 

CCC’s attempt to address her one complaint.”); Booker v. Express Scripts, Inc.,

2010 WL 11545956, at 3 (W.D. Ky. Feb. 11, 2010) (no waiver of work product 

protection where the plaintiff “was no longer an employee of [the defendant] 

when the investigation was conducted”).

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defense, the waiver is limited to documents regarding the investigation, 

e.g., McKenna v. Nestle Purina PetCare Co., 2007 WL 433291, at 4

(emphasis added: “These cases make clear, however, that the waiver 

extends only to documents which constitute evidence of the investigation of 

the claim of harassment or discrimination.”), and Stone’s notes of the

preliminary investigation have been provided to Plaintiff.

Finally, in a bizarre footnote, Plaintiff contends that the college waived

privilege attaching to the communications during the meeting simply because 

Stone was present and the General Counsel was her supervisor. ECF 60, p. 9 

n. 2. Plaintiff understandably cites no authority to support her novel 

proposition, as it is contrary to applicable law. See, e.g., McCook Metals L.L.C. 

v. Alcoa, Inc., 192 F.R.D 242, 254 (N.D. Ill. Mar. 2, 2000) (“Management should 

be able to discuss among themselves the legal advice given to them as agents of 

the corporation with an expectation of privilege.”); Weeks v. Samsung Heavy 

Indus. Co., Ltd., 1996 WL 341537, at 4 (N.D. Ill. June 20, 1996) (“A privileged 

communication does not lose its status as such when an executive relays legal 

advice to another who shares responsibility for the subject matter underlying 

the consultation. Management personnel should be able to discuss the legal 

advice rendered to them as agents of the corporation.”).

IV.

DEFENDANT SEEKS A PROTECTIVE ORDER, NOT SANCTIONS.

Plaintiff’s Response seems to infer that references in Defendant’s motion 

and brief to applicable Disciplinary Rules of Professional Conduct are for the 

purpose of seeking sanctions. ECF 60, p. 1 (“modus operandi), and pp. 11-13.

They are not. Rather, those references and the numerous cases cited by 

Defendant interpreting those rules support the “good cause” necessary for 

issuance of a protective order. Moreover, Plaintiff’s Response misconstrues 

those citations and arguments.

First, Plaintiff contends the reference in Defendant’s brief (ECF 59, p. 6, 

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n. 2) to DR 4.02(a) is “strange” because the rule is inapplicable to former 

employees, i.e., Stone. Plaintiff’s assertion wholly misperceives Defendant’s 

citation to that DR. The citation in footnote 2 of Defendant’s brief had nothing 

whatsoever to do with Plaintiff’s counsel’s ex parte communications with Stone

after she retired from the college. As explained in Defendant’s brief, DR 4.02(a) 

was cited in reference to Plaintiff’s communications:

 with Stone in October 2021 (when Stone was still an employee of the 

college) after Plaintiff had hired her lawyer in September;

 and her communications with Paul Williams, the Assistant Director of 

Human Resources, also in October 2021, after Plaintiff had hired her 

lawyer;

 for the purpose of obtaining information from Stone and Williams 

regarding investigation of Plaintiff’s complaint and results of the 

investigation;

 even though Plaintiff was represented by counsel and knew at the time of 

the communications that the matter had been referred to the General 

Counsel of the college.

Communications to elicit such information in October 2021 should have 

been directed to the General Counsel.6

Second, Plaintiff argues at length that there is nothing improper about 

having ex parte communications with Stone after she resigned from the college.

That is a straw man contention because Defendant’s motion and brief do not 

contend that ex parte communications with a former employee are per se

improper. Defendant’s contention—one which Plaintiff fails to address in her 

Response—is that during any such ex parte communications with a former 

employee an attorney is prohibited from inquiring into privileged communications

6 It is unknown whether Plaintiff’s communications with Stone and 

Williams in October 2021 were made on the advice or with the encouragement 

of her attorney.

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with the former employee. E.g., Butler v. Exxon Mobil Ref. & Supply Co., 2008 

WL 11351509, at 4 (M.D. La. July 22, 2008) (“In the course of the interview, 

plaintiffs’ counsel shall not attempt to solicit privileged or confidential 

information and shall terminate the conversation should it appear that the 

interviewee may reveal privileged or confidential matters.”); Westside-Marrero 

Jeep Eagle, Inc. v. Chrysler Corp., Inc., 1998 WL 186705, at 6 (E.D. La. Apr. 17, 

1998) (“[P]laintiffs’ counsel must instruct [the former employees] must not 

discuss with or produce to plaintiffs or their counsel, consultants, agents or 

other representatives any information that is trial preparation material or is

conceivably protected by the attorney/client privilege[.]”); In Matter of Torch, 

Inc., 1996 WL 185765, at 3 (E.D. La. Apr. 16, 1996) (“[A]n attorney can 

investigate the underlying facts leading up to the disputed matter, but he must 

forgo inquiry into attorney-client communication during the contact.”). Neither 

Plaintiff’s Response nor Appendix state that the ex parte communications with 

Stone were limited to non-privileged matters, or that there was no discussion 

regarding Stone’s privileged communications with the General Counsel. An 

attorney is prohibited from inquiring into privileged communications whether 

during ex parte communications or a deposition. See Amarin Plastics, Inc. v. 

Maryland Cup Corp., 116 F.R.D. 36, 42 (D. Mass. 1987).

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CONCLUSIONS AND REQUESTED RELIEF

For all of the foregoing reasons, the motion should be, in all things, 

GRANTED.7

Respectfully Submitted,

/s/ John L. Ross

JOHN L. ROSS

Texas State Bar No. 17303020

THOMPSON, COE, COUSINS & IRONS, L.L.P.

700 North Pearl Street

Suite 2500

Dallas, Texas 75201

Telephone: (214) 871-8206

Fax: (214) 871-8209

Email: jross@thompsoncoe.com

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

Pursuant to Fed. R. Civ. P. 5(b)(2)(E) and 5(b)(3), I hereby certify a true and 

correct copy of the foregoing document was filed electronically and notice of the 

filing was thereby given to Plaintiff’s counsel on the date file-stamped by the 

Clerk. Parties may access this filing through the court’s electronic filing 

system.

/s/ John L. Ross

JOHN L. ROSS

7 Defendant has previously submitted a proposed order detailing the 

specific relief requested.

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