Seventh Circuit Holds Firm's Interview Notes Taken While Conducting Investigation for School District Protected from Disclosure 

In Sandra T. v. South Berwyn School District, No. 100, (7th Cir. 2010), the Seventh Circuit Court of Appeals held the district court erred when it ordered a law firm employed by South Berwyn School District 100 to disclose notes taken while investigating allegations of sexual abuse.

The Court, finding the notes were protected by attorney-client privilege and work product doctrine, issued an expedited order reversing the district court's decision.

The investigation occurred after police arrested elementary school teacher Robert Sperlik on charges that he sexually molested numerous students from 1998 to 2005. Sperlik eventually pled guilty to the charges and was sentenced to 20 years in prison.

Shortly after Sperlik's arrest, some of the victims filed a civil lawsuit against the district and a school principal, who allegedly failed to take appropriate action after receiving several complaints that Sperlik sexually abused his students.

The documents in question consisted of handwritten notes of and written memoranda memorializing district employee interviews conducted by Sidley Austin, LLP. Sidley attorneys gave an oral report to the Board of its findings during a closed executive session, followed by a written summary of investigation. The engagement concluded shortly thereafter.

Plaintiffs in the civil suit later subpoenaed Sidley to produce documents relating to its work for the Board. The firm refused to produce the notes and memoranda, asserting the documents were protected by the attorney-client privilege and work product doctrine. The district court found the documents were not protected because the firm was hired only to provide investigative, as opposed to legal, services. It then directed the firm to disclose the documents.

The Court reversed, finding the documents were protected under both the attorney-client privilege and work product doctrine. It noted that attorney-client privilege protects communications made in confidence by a client to an attorney, acting as an attorney, for the purpose of obtaining legal advice. The work-product doctrine, on the other hand, protects documents prepared by attorneys in anticipation of litigation. 

The Court found the documents were protected by attorney-client privilege because Sidley performed the investigation as attorneys providing legal services. The Court stated the most important piece of evidence was an engagement letter to Sidley, in which the Board explained the firm was hired to "investigate the response of the school administration to allegations of sexual abuse of students" and "provide legal services in connection with" the investigation.

Furthermore, the firm's attorneys warned district employees during the interviews that Sidley represented the district, not the employee. The interviews remained confidential and the written summary of the investigation was marked "Privileged and Confidential," "Attorney-Client Communication," and "Attorney Work Product."

The Court held the documents also were protected under the work product doctrine. The documents were prepared not only in anticipation of prospective litigation, but after actual filing of the lawsuit. The fact that the district had other motivations for conducting the investigation, such as quelling public outrage and preventing future abuse, did not remove the investigation from the doctrine's scope.

In the related case, Sandra T. v. Grindle, No. 09-2920 (7th Cir. 2010), the Seventh Circuit refused to grant summary judgment in favor of the school principal, finding that "qualified immunity" did not bar the victims' equal protection and due process claims against her for failure to investigate the sexual abuse complaints. The case was reported on HLERK's Web site on March 26.