United States District Court, D. Connecticut
RULING AND ORDER ON DOCUMENTS REVIEWED IN
A. BOLDEN UNITED STATES DISTRICT JUDGE.
Doe has sued The Hotchkiss School (“Hotchkiss”)
for, among other things, negligence, and fraudulent
concealment of severe sexual abuse.
seeks discovery of documents characterized by Hotchkiss as
protected by the attorney-client privilege, the attorney work
product doctrine, or related public policy.
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.
FACTUAL AND PROCEDURAL HISTORY
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.
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.
considering oral and written submissions from the parties, on
May 9, 2018, the Court issued an Order directing the parties
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.
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.
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.
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