UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

JANE DOE, individually and as mother and )

natural guardian of JANE DOE 2, )

Plaintiff, )

)

v. ) CAUSE NO.: 4:15-CV-56-RL-PRC

)

TIPPECANOE SCHOOL CORPORATION, )

JOHN BEEKER, and FRED ROOP, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on a Motion to Compel Missing Pages from Materials

Provided at Defendants’ 2015 Professional Development Meeting [DE 49], filed by Plaintiff on

December 1, 2016. Defendants Tippecanoe School Corporation (TSC), John Beeker, and Fred Roop

filed a response on December 15, 2016. Plaintiff filed a reply on December 22, 2016.

In her motion, Plaintiff seeks a court order compelling Defendants to produce pages 3-9 from

a document titled “Strategies for Investigation and Preventing Inappropriate Student-Staff

Relationships.” The other pages of the document have been produced. Defendants oppose the motion

and argue that the pages at issue were properly withheld because they are covered by both the

attorney-client privilege and the work product doctrine. Defendants also briefly mention a challenge

to the pages’ relevance.

ANALYSIS

A party may “obtain discovery regarding any nonprivileged matter that is relevant to any

party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). A party

may seek an order compelling discovery when an opposing party fails to respond to discovery
requests or has provided evasive or incomplete responses. Fed. R. Civ. P. 37(a). The burden is on

the objecting party to show why a particular discovery request is improper.

Federal Rule of Evidence 501 provides that claims of privilege are governed by federal

common law unless state law supplies the rule of decision, in which case state law applies. In cases,

like the instant case, where both federal and state claims are brought and the discovery at issue

pertains to both claims, federal common law applies. Mem’l Hosp. for McHenry Cty. v. Shadur, 664

F.2d 1058, 1061 n.3 (7th Cir. 1981).

A. Work Product

The work product privilege applies to documents and tangible things that are prepared in

anticipation of litigation or for trial by and for another party or its representatives. Fed. R. Civ. P.

26(b)(3)(A). However, these materials may be discovered if they are otherwise discoverable under

Rule 26(b)(1) and “ the party shows that it has substantial need for the materials to prepare its case

and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R.

Civ. P. 26(b)(3)(A). If mental impressions, conclusions, opinions, or legal theories of a party’s

attorney are contained in work product, these are not to be disclosed even if the Court orders

discovery of work product. Fed. R. Civ. P. 26(b)(3)(B). The work product privilege serves “dual

purposes: (1) to protect an attorney’s thought processes and mental impressions against disclosure;

and (2) to limit the circumstances in which attorneys may piggyback on the fact-finding

investigation of their more diligent counterparts.” Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d

612, 621-22 (7th Cir. 2010).

To qualify for protection under the work product doctrine, “the primary motivating purpose

behind the creation of a document . . . must be to aid in possible future litigation.” Binks Mfg. Co.

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v. Nat’l Presto Indus., 708 F.2d 1109, 1119 (7th Cir. 1983) (quoting Janicker v. George Washington

Univ., 94 F.R.D. 648, 650 (D.D.C. 1982)); accordCharvat v. Valente, 82 F. Supp. 3d 713, 719 (N.D.

Ill. 2015) (quoting E.E.O.C. v. Commonwealth Edison, 119 F.R.D. 394, 395 (N.D. Ill. 1988)). In

determining whether the doctrine applies, courts “look to whether in light of the factual context ‘the

document can fairly be said to have been prepared or obtained because of the prospect of litigation.’”

Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976-77 (7th Cir. 1996) (quoting Binks Mfg. Co.,

709 F.2d at 1119). The burden is on the party asserting the doctrine’s protection to show that it

applies. Christman v. Brauvin Realty Advisors, Inc., 185 F.R.D. 251, 256 (N.D. Ill. 1999) (citing

Binks Mfg. Co., 709 F.2d at 1118).

The pages at issue here are part of a larger document that was created for the purpose of

training TSC employees. The document’s title and deposition testimony by TSC employees indicate

that the training was meant to enable the employees to investigate and prevent inappropriate

relationships between TSC’s students and staff. Though the document may not have been created

if the instant litigation had not been initiated, the primary motivating purpose behind the creation

of the document was to train staff to identify or avoid future incidents, not for use in defending the

instant lawsuit or any future theoretical lawsuit. Cf. Stalling v. Union Pac. R.R. Co., 01 C 1056, 2003

WL 22071502, at *1 (E.D. Ill. Sept. 4, 2003) (holding that a risk management training manual that

discusses the contingency of litigation is not work product). Defendants have not offered any

indication of how they plan to use the document in this or any other litigation that they may have

reason to anticipate. The work product doctrine and the protections it provides, contained in Federal

Rule of Civil Procedure 26(b)(3), do not apply to these pages.

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B. Attorney-Client Privilege

“The attorney-client privilege protects communications made in confidence by a client . . .

to an attorney . . . for the purpose of obtaining legal advice.” Sandra T.E., 600 F.3d at 618.

“Although the attorney-client privilege generally attaches only to statements made by the client,

statements made by the lawyer to the client will be protected in circumstances where those

communications rest on confidential information obtained from the client.” Rehling v. City of

Chicago, 207 F.3d 1009, 1019 (7th Cir. 2000). The privilege is “‘one of the oldest recognized

privileges for confidential communications’ known to the common law.” United States v. BDO

Seidman, 337 F.3d 802, 810 (7th Cir. 2003) (quoting Swidler & Berlin v. United States, 524 U.S.

399, 403 (1998)). “However, because ‘the privilege has the effect of withholding relevant

information,’ courts construe the privilege to apply only where necessary to achieve its purpose.”

Id. (quoting Fisher v. United States, 425 U.S. 391, 403 (1976); citing In re Grand Jury Proceeding

(Cherney), 898 F.2d 565, 567 (7th Cir. 1990)). The party seeking to invoke the privilege has the

burden of establishing all of its elements. Id. (citing In re Grand Jury Proceedings (Thullen), 220

F.3d 568, 571 (7th Cir. 2000); United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997)).“[M]ere

conclusory statements will not suffice to meet that burden.” Allendale Mut. Ins. Co. v. Bull Data

Sys., Inc., 152 F.R.D. 132, 139 (N.D. Ill. 1993).

The attorney-client privilege can be waived. Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095,

1098 (7th Cir. 1987). Express waiver of attorney-client privilege occurs when “information that

would otherwise be privileged is not kept confidential.” Patrick v. City of Chicago, 154 F. Supp. 3d

705, 711 (N.D. Ill. 2015) (citing United States v. Buljubasic, 808 F.2d 1260, 1268 (7th Cir. 1987)).

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To gain protection of the attorney-client privilege for the pages at issue, Defendants must

establish that the communication was made in confidence. See BDO Seidman, 337, F.3d at 811.

Defendants have not identified any deposition testimony indicating that the withheld pages are

confidential. Defendants argue that deposition testimony shows that attendance at the meeting was

limited to the attorney presenting the material, TSC’s administrators, and possibly TSC teachers.

The testimony, however, merely states that it was a “teacher’s meeting,” (Burton Dep. 36:9, ECF

No. 49-2), “administrative meeting in August where all of the administrators are there,” (Roop Dep.

12:18-19, ECF No. 49-3), or a mandatory “administrate professional development,” (DeLong Dep.

64:9, 65:11-12, ECF No. 49-4). The testimony is in conflict about who the intended audience was,

and there is no testimony indicating that the audience was restricted to only the invited employees

or that any measures were taken to keep the meeting or the materials distributed at the meeting

confidential.

Two deponents recalled materials being distributed at the meeting. (Roop Dep. 41:3-4, ECF

No. 49-3; DeLong Dep. 63:21-64:3, ECF No. 49-4). Defendants have not identified deposition

testimony labeling the presentation materials as confidential. The produced portion of the document

at issue does not contain a confidentiality notice, and Defendants do not contend that there is such

a notice in the withheld pages. Defendants’ attorney sent a letter to Plaintiff’s attorney in which he

asserts that the pages at issue “directly concern the subject matter of this litigation and appear to be

based upon confidential communications between [TSC counsel] and TSC.” (Mot. Ex. F, 1, ECF

No. 49-6). No further detail or support for this conclusory statement is provided. 

Plaintiff sent a notice for a deposition pursuant to Federal Rule of Civil Procedure 30(b)(6)

to TSC for the purpose of determining who was at the meeting, whether there was an intent that the

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information be confidential, the purpose of the meeting and discussion, and distribution and

production of the materials. TSC refused to produce a deponent for the 30(b)(6) deposition. Plaintiff

has not requested that the Court compel the production of a deponent.

As stated above, Defendants bear the burden to show that they are entitled to protection

under the attorney-client privilege. The evidence is not clear regarding who was in attendance at the

meeting, and there is insufficient evidence of intent for the document distributed at the meeting to

be kept confidential. Defendants have not established that the attorney-client privilege protects the

pages withheld from the document.

C. Relevance

In their introductory paragraph, Defendants also state that the pages “are of no obvious

relevance.” (Resp. at 1, ECF No. 55). However, Defendants present no argument in support of this

claim. Further, Defendants quote a letter from their counsel, which states in part “Pages 3-9 directly

concern the subject matter of this litigation.” Id. at 5. Defendants have not shown the discovery at

issue to be irrelevant.

D. Reasonable Expenses

Federal Rule of Civil Procedure 37(a)(5) provides that, if a motion to compel is granted, “the

court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated

the motion, the party or attorney advising the conduct, or both to pay the movant’s reasonable

expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5).

However, the Court must not order the payment under certain circumstances set forth in the rule. Id.

CONCLUSION

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Based on the foregoing, the Court hereby GRANTS the Motion to Compel Missing Pages

from Materials Provided at Defendants’ 2015 Professional Development Meeting [DE 49] and

ORDERS Defendants to produce pages 3-9 from “Strategies for Investigation and Preventing

Inappropriate Student-Staff Relationships” on or before January 16, 2017. 

The Court further ORDERS that any brief setting forth argument why the Court should not

order Defendants to pay Plaintiff’s reasonable fees incurred in bringing this motion must be filed

on or before January 24, 2017. Any response by Plaintiff must be filed by February 3, 2017.

So ORDERED this 10th day of January 2017.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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