Sandra T.E. v. South Berwyn School District 100
600 F.3d 612, 2010 WL 1191170 (2010)
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Rule of Law:
An internal investigation conducted by attorneys for the purpose of providing legal advice constitutes a professional legal service, and therefore, communications and documents generated during that investigation are protected by the attorney-client privilege and the work-product doctrine.
Facts:
- Robert Sperlik, a music teacher in the South Berwyn School District 100, sexually molested numerous female students over several years, from 1998 until his arrest in early 2005.
- Some of the victims had previously reported the abuse to their school principal, who allegedly failed to take appropriate action.
- In January 2005, shortly after Sperlik's arrest, some of the victims and their families filed a civil lawsuit against District 100 and the school principal.
- Reacting to the criminal charges, public outcry, and the civil lawsuit, the District 100 School Board retained the law firm of Sidley Austin LLP.
- The engagement letter stated Sidley was to investigate the administration's response to the abuse allegations and to 'provide legal services in connection with' the investigation.
- Sidley attorneys conducted confidential interviews with numerous current and former school-district employees, taking handwritten notes and later drafting memoranda summarizing the interviews.
- Sidley delivered its findings and legal advice to the School Board in a confidential oral report and a written executive summary marked as privileged.
Procedural Posture:
- Victims and their families (plaintiffs) filed a civil lawsuit in federal district court against South Berwyn School District 100 and a school principal (defendants).
- During discovery, plaintiffs issued a subpoena to Sidley Austin LLP, the non-party law firm that conducted an internal investigation for the School Board.
- Sidley Austin withheld its attorneys' notes and memoranda from the investigation, asserting attorney-client privilege and the work-product doctrine.
- On the plaintiffs' motion, the district court judge ruled that Sidley was hired as an investigator, not as an attorney, and ordered the firm to produce the documents.
- Sidley Austin appealed the district court's disclosure order to the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Do the attorney-client privilege and the work-product doctrine protect from disclosure the notes and memoranda created by a law firm during an internal investigation conducted for a client to provide legal advice in response to pending litigation?
Opinions:
Majority - Sykes, Circuit Judge
Yes. The attorney-client privilege and the work-product doctrine protect the documents because a factual investigation performed by attorneys as a prerequisite to providing legal advice is a core component of professional legal services. The district court erred by creating a false dichotomy between investigative services and legal services. Citing the Supreme Court's decision in Upjohn, the court explained that ascertaining the factual background is the first step in resolving any legal problem. Here, the engagement letter explicitly stated that Sidley was retained to provide legal services, and the attorneys' conduct—such as giving Upjohn warnings during confidential interviews—confirmed they were acting in their capacity as legal counsel. The work-product doctrine also applies because the investigation was conducted not merely in anticipation of litigation, but in direct response to the actual filing of the lawsuit against the District. The public status of the client does not negate the privilege in a civil context, as governmental entities also have a compelling need for confidential legal advice to ensure compliance with the law.
Analysis:
This decision strongly reaffirms the principles of Upjohn Co. v. United States, extending its protections to internal investigations conducted by outside counsel for public entities. It clarifies that the motive behind the investigation is key; as long as the primary purpose is to enable the provision of legal advice, the factual investigation itself is considered privileged legal work. This precedent provides crucial protection for corporations and governmental bodies, allowing them to hire lawyers to investigate potential wrongdoing without fear that the lawyers' entire investigative file will be discoverable by adversaries in litigation. The ruling solidifies the understanding that fact-finding is an indispensable part of legal representation, not a separate, non-privileged activity.
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