Doe v. Hotchkiss School

          RULING AND ORDER ON DOCUMENTS REVIEWED IN CAMERA

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         John Doe has sued The Hotchkiss School (“Hotchkiss”) for, among other things, negligence, and fraudulent concealment of severe sexual abuse.

         Mr. Doe seeks discovery of documents characterized by Hotchkiss as protected by the attorney-client privilege, the attorney work product doctrine, or related public policy.

         For the following reasons, the Court DENIES IN PART, FINDS MOOT IN PART, AND GRANTS IN PART the motion to compel disclosure. To the extent that a protective order is necessary regarding the information ordered disclosed here, the parties shall seek to reach an agreement on this issue and report back to the Court by November 9, 2018.

         I. FACTUAL AND PROCEDURAL HISTORY

         Mr. Doe sued Hotchkiss in February 2015. ECF No. 1. The parties have since been engaged in a lengthy and fraught course of discovery, which has yet to conclude. Approximately one year after Mr. Doe sued Hotchkiss, Hotchkiss's outside counsel, Wiggin & Dana LLP, retained Carlton Fields to conduct an investigation of reports of sexual misconduct by members of the Hotchkiss faculty and staff.

         On February 7, 2018, Mr. Doe served a subpoena on Carlton Fields seeking “[a]ll communications, statements, or information received in connection with the ‘independent investigation' concerning reports of sexual misconduct and/or inappropriate ‘hazing' behavior towards any Hotchkiss student or employee that occurred prior to April 8, 1987.” Hotchkiss moved for a protective order or to quash the subpoena Mr. Doe served on Carlton Fields. See Hotchkiss School v. Doe, 3:18-mc-00037 (VAB), ECF No. 15.

         After considering oral and written submissions from the parties, on May 9, 2018, the Court issued an Order directing the parties to:

submit jointly a stipulation providing for the production of: (a) documents related to and prepared during the relevant time period for Mr. Doe's lawsuit and in the possession of the law firm of Carlton Field as a result of its pending investigation of sexual misconduct at Hotchkiss prompted by this litigation; and (b) a privilege log accounting for and describing any other material or information sought by Mr. Doe but claimed by Hotchkiss to be protected by the attorney-client privilege, the work product doctrine, or any other relevant privilege, including, but not limited to, the names, dates, or any other identifying information of witnesses probative of Mr. Doe's case, consistent with Federal Rule of Civil Procedure 26(b)(5).

ECF No. 176.

         On June 22, 2018, the parties jointly moved for a discovery conference to address a lingering dispute between the parties over (1) the sufficiency of Hotchkiss's privilege log produced under the Court's May 23, 2018 scheduling order; and (2) the completeness of Hotchkiss's production of documents produced under that same scheduling order. ECF No. 199.

         The parties were provided with an opportunity to file written submissions with the Court, and on July 24, 2018, the Court heard oral argument. ECF Nos. 200, 201, 205, 206, 208, 209, 215. Given the challenge of assessing the proportionality of this discovery in the abstract and this Court's duty to “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation, ” Fed.R.Civ.P. 26(b)(B), the Court conducted an in camera review of the disputed documents and then resolve the outstanding discovery issues. ECF No. 217.

         Following a telephonic status conference on September 11, 2018, the Court instructed Hotchkiss to supplement its privilege determination for Exhibit 17 and the last two pages of Exhibit 122. ECF No. 239. The Court also requested that Mr. Doe also file a response to the supplemental briefing by Hotchkiss. Id.

         II. ...