Phillips Exeter Must Turn Over Reports on Alleged Sex Assault

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By Samson Habte

Oct. 18 — Prominent New England prep school Phillips Exeter Academy can’t stop the parents of a former student accused of sexual assault from seeing reports prepared by an outside lawyer who investigated the alleged assault, a federal judge held Oct. 13 ( Doe v. Phillips Exeter Acad. , 2016 BL 341761, D.N.H., No. 16-cv-396-JL, 10/13/16 ).

The ruling resolved a contentious discovery dispute in a high-profile lawsuit against Phillips Exeter Academy (PEA), a New Hampshire boarding school with an alumni base that includes 18 U.S. senators, 22 governors, two Nobel Prize winners and Facebook founder Mark Zuckerberg.

‘Independent’ Lawyer-Investigator

The lawsuit was filed by the parents of a teenager who was allegedly forced to withdraw from PEA after a fellow student accused him of sexual misconduct.

The parents—whose lawsuit accuses PEA of discriminating against their son during the probe of his alleged misconduct—sought discovery of reports that attorney Kai McGintee prepared after the school’s outside counsel retained her to conduct an independent probe into the claims against the plaintiffs’ son.

The school resisted that request, claiming the documents were protected by the attorney-client privilege. The school argued that although McGintee was hired by PEA’s lawyers—and not the school itself—her communications were protected because “the privilege must include all the persons who act as [the] agents” of a client’s lawyers, and not just the lawyers themselves.

Judge Joseph N. Laplante of the U.S. District Court for the District of New Hampshire said the privilege claim failed for at least three reasons.

The first part of Laplante’s ruling carries lessons for how organizations that wish to shield materials from internal probes from discovery in subsequent litigation should characterize the roles of lawyers who conduct those investigations.

Laplante said PEA’s privilege claim failed as threshold matter because the school’s dean of students, Melissa D. Mischke, “consistently described Attorney McGintee as an ‘independent investigator or an ‘external investigator’ in her communications with [the accused student’s parents] and her statements in this court.”

"[B]y describing Attorney McGintee as ‘independent,’ PEA appears to signal that Attorney McGintee was not acting as its outside counsel’s agent,” Laplante wrote.

Business Advice

Laplante said the second problem with PEA’s privilege claim arose because there was “a question as to whether Attorney McGintee’s reports amount to the provision of legal advice.” The attorney-client privilege generally covers communications in which a client seeks legal advice from an attorney who is acting in her capacity as a lawyer.

“PEA’s representations to [the] plaintiffs and to this court suggest that any advice provided in the reports advice is more akin to advice rendered to assist in a business decision, which the privilege does not protect, than legal advice, which it does,” Laplante wrote.

“PEA, by its own admission, ... used [the] information [gathered by McGintee] to form its decision on whether to suspend or expel John Doe,” Laplante added, referring to the plaintiff’s son. “Advice to a school on whether to discipline a student seems, to this court, to more closely resemble communications to facilitate a business decision than pursuit of legal advice.”

Waiver

Finally, Laplante said that even if McGintee’s reports were covered by the attorney-client privilege, it would still order disclosure because PEA “waived any privilege that may have attached to [the] reports” in two different ways.

The judge said PEA “waive[d] the privilege by implication” when it put “the subject matter of attorney-client communications at issue” in this litigation. “PEA has done so here by asserting its reliance on the reports as, at least in part, its basis for disciplining John Doe,” Laplante wrote.

“Even had PEA not put the reports into issue in this litigation, PEA waived any privilege by disclosing their contents to third parties—specifically, the [plaintiffs]—and in filings with this court,” the judge said. He pointed out that PEA disclosed portions of the reports to the accused student’s parents before this litigation began, and that the school “further described the reports’ contents—including Attorney McGintee’s conclusions—in several filings” submitted in this litigation.

Phillips Exeter Academy was represented by W. Daniel Deane, Manchester, N.H., and Steven M. Richard, Concord, N.H., of Nixon Peabody LLP.

The plaintiffs were represented by Max D. Stern, Megan C. Deluhery and Corrina L. Hale of Todd & Weld LLP, Boston, and by Samantha Elliot of Gallagher Callahan & Gartrell PC, Concord, N.H.

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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