1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF IDAHO 10 11 MEGAN FENTON, Case No.: 1:19-cv-00447-MCE 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 FRUITLAND SCHOOL DISTRICT NO. 373, et al., 15 Defendants. 16 17 18 Presently before the Court are numerous motions filed by the parties including a 19 motion to compel, motions to seal, motions to strike, motions in limine, and a motion to 20 strike an expert report. Dkt. 25, 27, 30, 32, 33, 34, 37. These matters have been fully 21 briefed. Having reviewed and considered the parties’ records and briefs, the Court finds 22 that oral argument is unnecessary to resolve the pending motions. For the reasons set 23 forth below, the motion to compel is GRANTED in part and DENIED in part, the motions 24 to seal are GRANTED, and the remaining motions are DENIED. 25 /// 26 /// 27 /// 28 /// 1 BACKGROUND1 2 3 On November 19, 2019, Plaintiff Megan Fenton (“Plaintiff”) initiated the present 4 action in this Court against Defendants Fruitland School District No. 373 (“FSD”), 5 Fruitland School District No. 373 Board of Trustees (the “Board”), and FSD 6 Superintendent Teresa Fabricius (“Fabricius”) (collectively, “Defendants”). According to 7 the Complaint, while she was employed at Fruitland High School, Plaintiff alleges that 8 she was sexually harassed and assaulted by former principal Michael Ray Fitch (“Fitch”), 9 and that Defendants failed to investigate or take any steps to protect her and other 10 students and staff.2 See Compl., Dkt. 1 ¶¶ 9–41. Plaintiff asserts the following causes 11 of action: (1) Gender Discrimination and Sexual Harassment in violation of Title VII of 12 the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq. (“Title VII”), against FSD and 13 the Board; (2) Retaliation in violation of Title VII against Defendants; (3) Gender 14 Discrimination, Sexual Harassment, and Sexually Hostile Culture in violation of Title IX of 15 the Education Amendments of 1972, 20 U.S.C. § 1681(a) (“Title IX”), against 16 Defendants; (4) Retaliation in violation of Title IX against Defendants; (5) violation of the 17 Idaho Protection of Public Employees Act against Defendants; (6) Intentional Infliction of 18 Emotional Distress against Defendants; (7) Negligent Infliction of Emotional Distress 19 against Defendants; and (8) Civil Rights Claim pursuant to the Eighth and Fourteenth 20 Amendments to the United States Constitution and 42 U.S.C. § 1983 against 21 Defendants.3 See id. at 10–20. 22 Defendants filed an Answer to the Complaint on February 21, 2020. See Dkt. 5. 23 Although Defendants did not list an affirmative defense based on advice of counsel, the
24 1 The Court will only recount the procedural history here but will discuss the factual context 25 applicable to each issue in more detail below.
2 At the time of the alleged events, Defendants were represented by MSBT Law (“MSBT”). In this 26 litigation, Defendants are represented by Anderson, Julian, & Hull, LLP (“AJH”).
27 3 Fitch was previously named a defendant in this action, but he was dismissed with prejudice pursuant to stipulation on December 19, 2022. See Dkt. 43, 44. Accordingly, the civil battery and civil 28 assault claims, which were asserted against Fitch only, are no longer active causes of action. 1 Answer provides the following references to speaking with counsel: (1) when “rumors 2 about Fitch were communicated to [her] in 2018 . . . Fabricius consulted with [FSD]’s 3 attorney and was advised that no investigation could be initiated merely on hearsay 4 rumors”; and (2) when Plaintiff filed a harassment complaint on December 18, 2018, 5 FSD, “with the advice of its attorney, determined that it would open a separate 6 investigation related only to Plaintiff’s allegations, resulting in two on-going 7 investigations.” See id. ¶¶ 10, 26, 32.4 8 On May 8, 2020, Plaintiff propounded her First Set of Interrogatories, Requests 9 for Admission, and Requests for Production of Documents to Defendants. See Ex. B, 10 Stoll Decl., Dkt. 26-3. The Court’s Scheduling Order was issued on June 12, 2020, 11 which provided that “[a]ll factual discovery will be completed by June 30, 2021.” Dkt. 13, 12 at 3 (emphases removed). 13 On June 25, 2020, Defendants produced, in part, a collection of Fabricius’ 14 handwritten notes with some redactions based on attorney-client privilege. See Ex. C, 15 Casperson Decl., Dkt. 25-4. That same day, Defendants also “produced some attorney- 16 client emails, most of which were related to the two investigations of Fitch initiated in 17 November and December 2018 . . .” Pl.’s Mot. Compel, Dkt. 25, at 5. 18 Defendants produced additional handwritten notes by Fabricius with redactions 19 based on attorney-client privilege on February 5, 2021. See Ex. C, Casperson Decl., 20 Dkt. 25-4. On April 14, 2021, the Court granted the parties’ stipulation to extend the 21 deadline for the completion of discovery to September 30, 2021. Dkt. 17, at 1. Shortly 22 before Fabricius’ deposition, on May 6, 2021, Defendants produced unredacted versions 23 of Fabricius’ handwritten notes and unredacted attorney-client communications with 24 AJH, MSBT, and Idaho Counties Risk Management Program (“ICRMP”). See Exs. C & 25 G, Casperson Decl., Dkt. 25-4, 25-8. Fabricius was deposed on May 14, 2021, in which 26 she testified, in part, that (1) attorney Jill Holinka of MSBT advised her she “could not
27 4 Because FSD had independently received information indicating that Plaintiff had previously been interviewed during the course of a law enforcement investigation into Fitch’s conduct, it had already 28 opened its own investigation, which is why two investigations thereafter proceeded simultaneously. 1 begin an investigation based on rumors”; (2) she talked to attorney Brian Julian of AJH at 2 a law conference “to double check that there wasn’t anything [she] should be doing 3 based on rumors”; (3) she did not place Fitch on administrative leave on October 19, 4 2018, because she was advised that Defendants had to wait for a written report; and 5 (4) she is “in the habit of following legal advice from [Defendants’] attorney.” See Ex. D, 6 id., Dkt. 25-5, at 37, 39, 41, 51–52. 7 On August 16, 2021, the Court granted the parties’ second stipulation to extend 8 the discovery deadline, this time to December 29, 2021. Dkt. 20, at 1–2. A couple 9 weeks later, on August 31, 2021, Defendants produced clips of recordings attorney 10 James Stoll of AJH made of interviews with three witnesses, but they did not produce the 11 full recordings until September 10, 2021. Casperson Decl., Dkt. 25-1 ¶ 20. On 12 September 30 and November 19, 2021, Defendants produced additional unredacted 13 attorney-client communications with AJH, MSBT, and ICRMP. See Ex. G, id., Dkt. 25-8. 14 Plaintiff subpoenaed information from MSBT and attorney Holinka to obtain waived 15 communications, and in December 2021, MSBT responded by producing emails, billing 16 records, and attorney Holinka’s notes. See Casperson Decl., Dkt. 25-1 ¶¶ 16–18; Ex. K, 17 id., Dkt. 25-12 (letter dated November 29, 2021, from attorney Holinka stating that she 18 no longer works for MSBT). Additionally, Plaintiff served a subpoena on attorney Elaine 19 Eberharter-Maki, who FSD retained to investigate the allegations related to Fitch in 20 October and November 2018, for documents associated with those investigations, and 21 attorney Eberharter-Maki timely responded with documentation. See Exs. Y & Z, id., 22 Dkt. 25-26, 25-27. 23 On December 10, 2021, Defendants finally produced all of Fabricius’ unredacted 24 handwritten notes as well as more unredacted attorney-client communications with AJH, 25 MSBT, and ICRMP. Pl.’s Mot. Compel, Dkt. 25, at 4; see Ex. G, Casperson Decl., Dkt. 26 25-8. Defendants also produced additional recordings of attorney Stoll’s interviews with 27 other witnesses on December 29, 2021, and January 27, 2021. Casperson Decl., Dkt. 28 25-1 ¶ 21. 1 On February 11, 2022, Plaintiff sent Defendants a meet and confer letter 2 regarding numerous discovery concerns. See Ex. A, id., Dkt. 25-2. Shortly thereafter, 3 on February 16, 2022, Defendants produced Fabricius’ email communications with 4 MSBT. Casperson Decl., Dkt. 25-1 ¶ 15. On March 22, 2022, Plaintiff’s counsel went to 5 defense counsel’s office to examine Fabricius’ original handwritten notes. See Perdue 6 Decl., Dkt. 25-28 ¶ 2. According to Plaintiff’s counsel, 7 the notes created by Ms. Fabricius were made for the purposes of her legal defense and the legal defense of [FSD]. 8 For example, the notes are categorized by different topic, numbered by Fabricius in the top right-hand corner, and refer 9 to emails that are also included in her notes. The handwriting on the notes on multiple date entries is the same, the spacing 10 is even, and the ink is the same color. All suggesting that these notes were not taken as the events occurred but re-written to 11 aid Defense Counsel in the defense of the case. Additionally, many of the notes are stapled or compiled by topic. 12 [Plaintiff’s counsel] requested that James Stoll, one of 13 Defendants’ legal counsel, provide color copies of all notes as the ink colors and handwriting give necessary context from the 14 notes. Seeing the notes in color also made it clear that the many, if not all, of the notes were created for the purpose of 15 defense of Ms. Fabricius and FSD. For example, in a note allegedly dated August 15, 2019, Ms. Fabricius numbers the 16 note pages 1–4 in the top right hand corner, and describes a meeting she had with [Plaintiff]. In the same notes, Ms. 17 Fabricius goes on to outline details that would aid in the defense of herself and FSD. In those notes, Ms. Fabricius also 18 created a heading labeled: “Points regarding complaint.” She then goes on to list “Witnesses regarding discrimination and 19 retaliation.” 20 Id. ¶¶ 3–4.5 Following this inspection, Plaintiff’s counsel requested that Defendants 21 provide color copies of Fabricius’ notes and “confirm that there are no other original 22 notes possessed by FSD that have not yet been produced by Ms. Fabricius or FSD.” 23 Id. ¶ 5. According to Plaintiff, Defendants did not provide the requested copies. Id. The 24 parties subsequently filed the present motions.
25 5 In their opposition to the Motion to Compel, Defendants claim that, “[p]rior to the deadline for Discovery, Plaintiff did not make any formal request to have Ms. Fabricius’ notes produced in color, 26 despite some being produced in color on June 25, 2020 . . .” Defs.’ Response Mot. Compel, Dkt. 26, at 2 n.1. Regardless, defense counsel asserts that “it is unclear . . . why some notes were produced in color, 27 while others in black and white,” but that perhaps “it was a result of how the office assistant scanned the documents at the time of receipt.” Id. (“There was never a decision to purposefully disclose some of the 28 notes in color and the rest in black and white.”). 1 ANALYSIS 2 3 A. Plaintiff’s Motion to Compel Defendants’ Waived Attorney-Client Communications and Work Product6 4 5 Discovery is permitted “regarding any nonprivileged matter that is relevant to any 6 party’s claim or defense and proportional to the needs of the case . . .” Fed. R. Civ. P. 7 26(b)(1). Relevant information “need not be admissible in evidence to be discoverable.” 8 Id. A party may move for an order compelling a discovery response pursuant to Federal 9 Rule of Civil Procedure 37(a)(3)(B).7 Under Rule 37, a party may move to compel 10 discovery responses if, among other things, an opposing party fails to answer 11 interrogatories or produce requested documents. Id. 37(a)(3)(B)(iii)–(iv). “While the 12 moving party must make a threshold showing of relevance, . . . the party resisting 13 discovery carries the ‘heavy burden’ of showing specifically why the discovery request is 14 irrelevant, unduly burdensome, disproportional to the needs of the case, or otherwise 15 improper.” Strojnik v. Block 22 LLC, No. 1:18-cv-00556-BLW, 2019 WL 6315523, at *2 16 (D. Idaho Nov. 25, 2019) (citations omitted). 17 “Under Federal Rule of Evidence 501, federal common law generally governs 18 claims of privilege.” Wilcox v. Arpaio, 753 F.3d 872, 876 (9th Cir. 2014). “But in a civil 19 case, state law governs privilege regarding a claim or defense for which state law 20 supplies the rule of decision.” Fed. R. Evid. 501. Here, Plaintiff alleges both federal and 21 /// 22
23 6 Defendants request that the Court seal Exhibit L to the Declaration of attorney Stoll in support of Defendants’ Response to Plaintiff’s Motion to Compel on grounds that it “contains the date of birth and 24 social security number of the Plaintiff.” Defs.’ Mot. Seal, Dkt. 27, at 2; see Ex. L, Stoll Decl., Dkt. 26-47 (Plaintiff’s Objections, Answers and Responses to Defendants’ First Set of Interrogatories and Requests 25 for Production). Plaintiff does not oppose this request. Additionally, Plaintiff requests that the Court file Exhibit 4 to the Declaration of attorney Casperson in support of Plaintiff’s Reply to the Motion to Compel under seal “based upon Defendants’ categorization of the document as ‘Confidential Subject to Protective 26 Order.’” Pl.’s Mot. Seal, Dkt. 30, at 2. Defendants do not oppose this request. In light of the parties’ non- oppositions, the Court GRANTS both Motions to Seal. 27
7 Unless otherwise noted, all further references to “Rule” or “Rules” are to the Federal Rules of 28 Civil Procedure. 1 state law claims in her Complaint. Where “the same evidence relates to both federal and 2 state law claims, . . . federal privilege law governs.” Wilcox, 753 F.3d at 876. 3 “Under the attorney-client privilege, confidential communications made by a client 4 to an attorney to obtain legal services are protected from disclosure.” Clarke v. Am. 5 Com. Nat’l Bank, 974 F.2d 127, 129 (9th Cir. 1992). “Because the attorney-client 6 privilege has the effect of withholding relevant information from the factfinder, it is 7 applied only when necessary to achieve its limited purpose of encouraging full and frank 8 disclosure by the client to his or her attorney.” Id. “The attorney-client privilege applies 9 when (1) legal advice is sought by the client (2) from a professional legal advisor in his 10 capacity as such, and (3) the communications relating to that purpose (4) are made in 11 confidence (5) by or to the client.” Goodrick v. Sandy, No. 1:10-cv-00603-EJL, 2013 WL 12 1729108, at *8 (D. Idaho Apr. 22, 2013) (citing Admiral Ins. Co. v. United States Dist. Ct. 13 for Dist. of Ariz., 881 F.2d 1486, 1492 (9th Cir. 1989)). 14 On the other hand, the work product doctrine, codified in Rule 26(b)(3), protects 15 from discovery “documents and tangible things that are prepared in anticipation of 16 litigation or for trial by or for another party or its representative . . .” Fed. R. Civ. P. 17 26(b)(3)(A). However, “subject to Rule 26(b)(4), those materials may be discovered if: 18 (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it 19 has substantial need for the materials to prepare its case and cannot, without undue 20 hardship, obtain their substantial equivalent by other means.” Id. “Generally, the party 21 seeking to withhold documents from discovery on the basis of attorney-client privilege 22 and work product has the burden of proving that those doctrines apply to the documents 23 in question.” W. Mortg. & Realty Co. v. KeyBank Nat’l Ass’n, No. 1:13-cv-00216-EJL- 24 REB, 2015 WL 13841480, at *3 (D. Idaho Apr. 15, 2015). With these principles in mind, 25 the Court will examine each of Plaintiff’s requests in turn. 26 1. Advice of Counsel Defenses 27 “There are numerous [] courts holding that the assertion of the advice of counsel 28 as a substantive defense renders the attorney-client privilege waived.” In re Fresh and 1 Process Potatoes Antitrust Litig., No. 4:10-md-02186-BLW-CWD, 2014 WL 1413676, at 2 *6 (D. Idaho Apr. 11, 2014) (collecting cases). “The privilege which protects attorney- 3 client communications may not be used both as a sword and a shield.” Chevron Corp. v. 4 Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992) (citation omitted). In other words, 5 “parties should not be able to selectively disclose privileged communications they 6 consider helpful while claiming privilege on damaging communications relating to the 7 same subject.” Aspex Eyeware, Inc. v. E’Lite Optik, Inc., 276 F. Supp. 2d 1084, 1093 8 (D. Nev. 2003). Although “a work product waiver is not automatic in cases involving a 9 reliance on counsel defense . . . many courts do find that waiver of the work product 10 doctrine is proper under the same fairness considerations that govern waiver of attorney- 11 client privilege.” In re Broadcam Corp. Sec. Litig., No. SACV 01275GLTMLGX, 2005 WL 12 1403513, at *3 (C.D. Cal. Apr. 7, 2005); see also United Specialty Ins. Co. v. Dorn 13 Homes Inc., 334 F.R.D. 542, 545–46 (D. Ariz. Jan. 28, 2020) (collecting cases). 14 According to Defendants, they are claiming an advice of counsel defense 15 regarding (1) “Defendants’ decision not to investigate Fitch when misconduct was 16 reported,” and (2) “Defendants’ decision not to investigate Fitch after learning [Idaho 17 State Police (‘ISP’)] was investigating him for sexual misconduct.”8, 9 Defs.’ Response 18 Mot. Compel, Dkt. 26, at 18 (quoting Pl.’s Mot. Compel, Dkt. 25, at 11). Accordingly, 19 Plaintiff argues that “Defendants should be required to produce all attorney-client 20 communications and work product doctrine information related to each of [their] 21 affirmative defenses based on advice of counsel.” Pl.’s Mot. Compel, Dkt. 25, at 12. 22 In opposition, Defendants primarily argue that Plaintiff never served them with 23 requests for the information she now seeks. See Defs.’ Response Mot. Compel, Dkt. 26, 24 at 3, 10, 11, 13, 17–19. Such an argument, however, would be more persuasive had
25 8 Defendants state they are not asserting an advice-of-counsel defense regarding their decision to move Plaintiff’s desk into the computer lab. See Defs.’ Response Mot. Compel, Dkt. 26, at 10, 18. 26
9 According to Plaintiff, the advice of counsel defense based on Defendants’ decision not to 27 investigate Fitch after learning of the ISP investigation “was not identified until Defendants submitted their position paper to the Court on February 22, 2022.” Pl.’s Mot. Compel, Dkt. 25, at 11; see Ex. X, 28 Casperson Decl., Dkt. 25-25, at 3. 1 Defendants not produced varying versions (i.e., redacted based on attorney-client 2 privilege and then fully unredacted) of the same documentation over the course of 3 discovery in piecemeal fashion.10 See Pl.’s Reply ISO Mot. Compel, Dkt. 29, at 4 4 (“Defendants’ repeated assertions that Plaintiff’s counsel failed to depose witnesses or 5 conduct discovery is disingenuous given the large number of late produced and withheld 6 documents. . . . Further, Plaintiff cannot depose the remaining witnesses until the 7 relevant discovery is produced.”). For example, Defendants previously asserted 8 attorney-client privilege in redacting portions of Fabricius’ handwritten notes but then 9 seemingly waived that privilege when they provided the unredacted versions of the same 10 notes before Fabricius’ deposition and right before the close of discovery. See Ex. C, 11 Casperson Decl., Dkt. 25-4. 12 Although Defendants admit that “certain attorney-client documents have been 13 intentionally disclosed during litigation,” they contend that “these disclosures do not 14 function as a blanket waiver of attorney-client and work product privileges.” Defs.’ 15 Response Mot. Compel, Dkt. 26, at 18. However, “[t]he Ninth Circuit has held that a 16 defendant claiming to have relied upon the advice of counsel cannot selectively waive 17 the attorney-client privilege with respect to communications that tend to show that he 18 relied upon advice of counsel while simultaneously refusing to disclose other 19 communications pertaining to the same subject.” United States v. W.R. Grace, 439 F. 20 Supp. 2d 1125, 1144 (D. Mont. 2006) (citing United States v. Ortland, 109 F.3d 539, 543 21 (9th Cir. 1997)). 22 Defendants also argue that “work product and communications that have not 23 been produced to the client, and thus could not have informed the client’s decision- 24 making, are not discoverable . . .” Defs.’ Response Mot. Compel, Dkt. 26, at 19. But 25 numerous courts have found that “the defendant, ‘having waived the privilege by 26 asserting the advice of counsel defense, must produce not only attorney-client
27 10 It is worth noting that Defendants provided 24 supplemental responses to Plaintiff’s First Set of Interrogatories, Requests for Admission, and Requests for Production of Documents. See Stoll Decl., Dkt. 28 26-1 ¶ 3. 1 communications but also all documents relied upon or considered by counsel in 2 rendering the opinions relied upon.’” In re Fresh and Process Potatoes, 2014 WL 3 1413676, at *5–6 (quoting Aspex Eyeware, 276 F. Supp. 2d at 1092–93) (“It would be 4 patently unfair for a party to assert that they relied upon the advice of counsel, yet 5 deprive the opponent of the opportunity to understand why the advice was given, what 6 other alternatives were looked at, why certain advice was rejected, and how the advice 7 was interrelated to other [] decisions.”). 8 Even assuming they waived attorney-client privilege and the work product 9 doctrine, Defendants argue that “there is nothing to compel with regard to” their advice of 10 counsel defenses because “[o]n February 16, 2022, prior to the filing of the Motion to 11 Compel, [they] produced all e-mail communications between Ms. Fabricius and Jill 12 Holinka and Lynden Nguyen, for the dates of December 2017 through November 2018,” 13 as well as “all billing records received by [FSD] from MSBT [] for the same time period.” 14 Defs.’ Response Mot. Compel, Dkt. 26, at 19–20. However, the Court agrees with 15 Plaintiff that there appear to be discrepancies in the information produced. See Pl.’s 16 Reply ISO Mot. Compel, Dkt. 29, at 8. For example, attorney Holinka states in her 17 declaration that, “as [she] communicated with Ms. Fabricius regarding multiple issues 18 related to [FSD] in any given week, [she] did not regularly take notes of [her] 19 conversations with Ms. Fabricius, or otherwise document the legal advice [she] provided 20 to her.” Ex. J, Holinka Decl., Dkt. 26-42 ¶ 4. However, attorney Holinka produced 21 detailed notes of her conversations with Fabricius beginning in October 2018, 22 suggesting that notes from the months prior may exist. See Ex. M, Casperson Decl., 23 Dkt. 25-14 (consisting of 34 pages of handwritten notes). Furthermore, Plaintiff 24 expresses the following: 25 Both Fabricius and Holinka claim that they discussed the allegations that Fitch was engaged in inappropriate sexual 26 relationships with students, staff, or others on January 29, 2018, but no notes from Holinka relat[ing] to [this] ½ hour 27 meeting have been produced, in spite of Fabricius’ claim of extensive reporting of information. Dkt. 28-1 at 10–11; 28 Casperson Reply Decl., ¶ 12, Ex. 5. Both Fabricius and 1 Holinka repeat that they had discussions on April 12, 13, and April 16, May 7, and August 3, 2018, but neither Holinka or 2 Fabricius have produced Holinka’s notes for those days, and MSBT claims the notes that exist do not include sexual 3 allegations related to Fitch. Dkts. 28-1 at 11–13; 26-42 at 3– 11; 25-14 at 1. Fabricius ignores the telephone conversations 4 she had with Holinka on October 16 and 19th, confirmed in Holinka’s notes, and claims a detailed conversation happened 5 on October 22, 2018, for which no notes from Holinka have been produced. Dkts. 28-1 at 13–17; 26-42 at 7–10; 25-14 at 6 2–3. . . . Further, many of MSBT’s billing records do not reflect any events and certainly not the detailed discussions 7 represented by Fabricius. Casperson Decl., ¶ 12, Ex. 5. Further, the October 22, 2018, billing records reflect 8 unproduced emails by MSBT and Defendants. Casperson Decl., ¶¶ 11–12, Ex. 4 & 5. Finally, Defendants’ production 9 was after discovery closed. 10 Pl.’s Reply ISO Mot. Compel, Dkt. 29, at 8. 11 In light of the above, Defendants’ piecemeal provision of the same documentation 12 (e.g., Fabricius’ notes), and the production of communications and billing records after 13 the close of discovery, the Court agrees with Plaintiff that there are likely notes and 14 communications still missing. See id. (“Defendants cannot reasonably expect to testify 15 regarding alleged communications and then refuse to produce notes or emails that do 16 exist for those dates, particularly where they are referenced in the billing records but not 17 produced by MSBT, suggesting those entries had nothing to do with Fitch.”). 18 Accordingly, Plaintiff’s Motion to Compel is GRANTED to the extent it seeks information 19 related to Defendants’ advice of counsel defenses based on their decisions not to 20 investigate Fitch when misconduct was reported and after learning ISP was investigating 21 him for sexual misconduct.11 See Pl.’s Mot. Compel, Dkt. 25, at 18–19. This includes 22 any “contemporaneous notes, if they exist . . .” Id. at 4. Because Defendants are not 23 pursuing an advice of counsel defense as to their decision to move Plaintiff’s desk into 24 the computer lab, Plaintiff’s Motion to Compel related information is DENIED. 25 ///
26 11 Plaintiff alternatively argues that “Defendants’ limited production, after depositions were taken, should result in a waiver of its affirmative defenses.” Pl.’s Mot. Compel, Dkt. 25, at 9; see also Pl.’s Reply 27 ISO Mot. Compel, Dkt. 29, at 8–9. The Court will not strike these advice of counsel defenses at this time, but Defendants are warned that failure to comply with this Memorandum and Order may result in such a 28 sanction. 1 Defendants are advised against asserting new advice of counsel defenses in this case 2 without providing all of the appropriate documentation and information. 3 2. Attorney-Client Communications Unrelated to Advice of Counsel Defenses and Recordings with Board Members and 4 Administrative Staff 5 According to Plaintiff, Defendants have produced the following information and 6 documentation unrelated to their advice of counsel defenses: 7 [I]nformation provided by Fabricius to Brian Julian, James Stoll, and Andrea Fontaine at AJH (Casperson Decl., ¶ 13, Ex. 8 G, i.e., p. 21); emails between Fabricius and Brian Julian, James Stoll, or Andrea Fontaine (Casperson Decl., ¶ 13, Ex. 9 G, i.e., p. 8–9, 11, 45–47); letters to ICRMP (Casperson Decl., ¶ 14, Ex. H); witness recordings (Casperson Decl., ¶¶ 22–28, 10 Ex. N–T); emails between Fabricius and ICRMP (Casperson Decl., ¶ 13, Ex. G, i.e., p. 69); emails between Fabricius and 11 Moreton & Co (Casperson Decl., ¶ 13, Ex. G, i.e., p. 79); emails between [attorney Eberharter-Maki] and Fabricius (not 12 produced previously) (Casperson Decl., ¶ 13, Ex. G, i.e., p. 96); and emails between Fabricius and Holinka (not produced 13 previously) (Casperson Decl., ¶ 13, Ex. G, i.e., p. 102). Defendants also produced other attorney-client 14 communications unrelated to Plaintiff’s case. 15 Pl.’s Mot. Compel, Dkt. 25, at 16, 17 (“The topics of the recording[s] touch on nearly 16 every aspect of the case.”); see also Casperson Decl., Dkt. 25-1 ¶ 13 (“Defendant[s] 17 intentionally produced likely more than 1000 pages of attorney client privileged 18 communications over the course of discovery.”). Regarding Defendants’ investigations 19 of Fitch, Plaintiff provides the following: 20 Plaintiff requested that Defendants produce any related emails with counsel from January 2018 through November 2018, the 21 time period [Fabricius] claimed she was obtaining advice not to investigate. Casperson Decl., ¶ 15. Because Fabricius’ 22 notes include reference to an email to Holinka in April 2018, Plaintiff believes relevant information has not been produced. 23 The fact that there are no discussions with MSBT or any other legal counsel during this timeframe, along with the complete 24 absence of confirming notes from MSBT, cements that Fabricius’ decision not to investigate was her own, not one by 25 legal counsel. 26 . . . 27 Though Defendants were made aware of Fitch’s harassment of Plaintiff and his sexual misconduct with students well prior, 28 Defendants worked with MBST to engage [attorney 1 Eberharter-Maki] to investigate both issues in November and December 2018. Casperson Decl., ¶ 6, Ex. C. Defendants 2 only produced limited portions of [attorney Eberharter-Maki’s] files, though they assert they acted reasonably in investigating 3 Fitch. Plaintiff had to subpoena the entire file from [attorney Eberharter-Maki] to obtain the full investigations. Casperson 4 Decl., ¶ 33, Ex. Y. Only after obtaining the full file did Plaintiff see that [attorney Eberharter-Maki’s] initial draft of her 5 investigation of Fitch’s conduct had facts regarding Defendants’ notice removed and that [attorney Eberharter- 6 Maki] had requested a timeline from Fabricius on November 24, 2018. Casperson Decl., ¶ 34, Ex. Z (Draft Fitch report, 7 [attorney Eberharter-Maki] Notes, Final Fitch Investigation). Presumably, the initial facts were based on Fabricius’ timeline. 8 9 Pl.’s Mot. Compel, Dkt. 25, at 16–17. 10 To the extent Defendants reassert their argument that Plaintiff never served 11 formal requests for this information, it fails for the same reasons discussed above. See 12 supra Part A.1. Like the documentation related to their advice of counsel defenses, 13 Defendants have produced expansive disclosures of privileged information. Defendants 14 initially asserted attorney-client privilege and work product protection only to later provide 15 that same documentation in unredacted form, mostly towards the tail-end of discovery 16 and even after discovery closed. 17 As “the party seeking to withhold documents from discovery on the basis of 18 attorney-client privilege and work product,” Defendants have “the burden of proving that 19 those doctrines apply to the documents in question.” KeyBank, 2015 WL 13841480, at 20 *3. Here, Defendants have not provided any explanation as to why those privileges are 21 applicable to any outstanding documentation not produced. Defendants cannot produce 22 privileged information on one subject but then assert a blanket privilege to withhold other 23 information regarding that same subject without explaining what that information is and 24 why it is privileged. Because Defendants have failed to meet their burden, Plaintiff’s 25 Motion to Compel is GRANTED as to attorney-client communications and work product 26 unrelated to their advice of counsel defenses, their investigations of Fitch, and their 27 recordings. See Pl.’s Mot. Compel, Dkt. 25, at 19–20. 28 /// 1 3. Privilege Logs 2 Rule 26(b)(5)(A) provides the following: 3 When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to 4 protection as trial-preparation material, the party must: 5 (i) expressly make the claim; and 6 (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a 7 manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. 8 9 “[B]oilerplate objections or blanket refusals inserted into a response to a Rule 34 request 10 for production of documents are insufficient to assert a privilege.” Burlington N. & Santa 11 Fe Ry. Co. v. United States Dist. Ct. for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 12 2005). 13 Here, Defendants’ privilege logs only provide the bates numbers and privilege 14 asserted. See Ex. B, Casperson Decl., Dkt. 25-3. As a result, neither Plaintiff nor this 15 Court can adequately determine whether the asserted privileges foreclose disclosure of 16 documentation, especially since Defendants have not provided any additional or 17 adequate explanations to demonstrate that the privileges are even applicable to 18 unproduced documentation. See Pl.’s Mot. Compel, Dkt 25, at 18 (“Plaintiff does not 19 know what communications and work product exist because Defendants have not 20 provided a privilege log for the litigation period.”). Accordingly, regarding any non- 21 produced materials, Defendants are required to provide a privilege log in accordance 22 with Rule 26(b)(5)(A).12 23 /// 24 ///
25 12 Plaintiff further asserts that attorney Holinka was never disclosed as a witness. See Pl.’s Mot. Compel, Dkt. 25, at 13; but see Defs.’ Response Mot. Compel, Dkt. 26, at 12–13 (stating that attorney 26 Holinka was identified multiple times in Fabricius’ notes and deposition testimony, but Plaintiff never formally requested communications from attorney Holinka). Regardless, in addition to Defendants 27 providing some communications and notes from attorney Holinka, the parties’ counsel agreed that Plaintiff could depose attorney Holinka, in addition to attorneys Eberharter-Maki, Fontaine, and Julian, after the 28 close of discovery. See Casperson Reply Decl., Dkt. 29-1 ¶ 8. 1 B. Plaintiff’s Motions to Strike and Motions in Limine 2 Plaintiff also moves to strike the declarations of Michael R. Williams (Dkt. 26-40), 3 Marci Haro (Dkt. 26-43), Fabricius (Dkt. 26-43), and attorney Holinka (Dkt. 26-42). See 4 Dkt. 32–34. Because the Court need not consider the contested portions of those 5 declarations in reaching its decision on the Motion to Compel, Plaintiff’s Motions to Strike 6 are DENIED as moot. See Gonzales v. City of San Jose, No. 5:13-cv-00695-BLF, 2015 7 WL 632320, at *3 & n.14 (N.D. Cal. Feb. 13, 2015) (collecting cases). 8 Plaintiff also moves to bar Williams and Haro from testifying at the trial of this 9 matter. See Dkt. 32–33. “However, generally, ruling on motions in limine ‘should be 10 deferred until shortly before trial to ensure that the evidence may be weighed in proper 11 context.’” Carbajal v. Hayes Mgmt. Serv., Inc., No. 4:19-cv-00287-BLW, 2021 WL 12 2711465, at *1 (D. Idaho July 1, 2021) (quoting Bratton v. Shinette, No. 2:16-cv-1084- 13 EFB-P, 2018 WL 4929736, at *5 (E.D. Cal. Oct. 11, 2018)). Because discovery will need 14 to be reopened, no dispositive motions have been filed, and trial is not imminent, the 15 Court finds Plaintiff’s Motions in Limine are premature. Accordingly, those Motions are 16 DENIED without prejudice. 17 C. Defendants’ Motion to Strike Expert Report of Lindy Aldrich, Esq. 18 Lastly, Defendants move to strike the expert report of Lindy Aldrich, Esq., 19 attached to the Declaration of attorney Casperson in support of Plaintiff’s Reply to the 20 Motion to Compel. Defs.’ Mot. Strike, Dkt. 37; see also Ex. 3, Casperson Reply Decl., 21 Dkt. 29-4, at 4–21 (providing expert opinion on whether FSD “met the appropriate 22 standard of care consistent with its obligations under Title IX”). Defendants seek to 23 “strike those aspects of Ms. Aldrich’s legal expert testimony which purported to define 24 the governing law, and applied the purported governing law to unsupported facts, in 25 reaching improper legal conclusions and prohibit Ms. Aldrich from testifying consistent 26 therewith at trial.” Defs.’ Mem. ISO Mot. Strike, Dkt. 37-1, at 2. However, the Court did 27 not rely on this expert report in reaching a decision on any of the aforementioned 28 motions. Furthermore, like Plaintiff’s Motions in Limine, the Court finds it would be 1 premature to decide at this time whether this expert report should be stricken from the 2 record and not considered for the purposes of summary judgment and trial. See supra 3 Part B. Therefore, Defendants’ Motion is DENIED without prejudice. 4 5 CONCLUSION 6 7 Based on the foregoing, the Court orders as follows: 8 1. Plaintiff’s Motion to Compel, Dkt. 25, is GRANTED in part and DENIED in part. 9 Plaintiff’s Motion to Compel documentation and information related to Defendants’ 10 advice of counsel defense regarding the decision to move Plaintiff’s desk into the 11 computer lab is DENIED. Otherwise, Defendants must provide the following 12 documentation and information (see id., at 18–20): 13 A. Advice of Counsel Defenses: 14 (1) All communications, evidence provided or discussed, and work product that discusses, analyzes, or addresses any legal 15 counsel giving Defendants advice about investigating Fitch, including any document discussing or identifying information 16 provided by Defendants for the purposes of such opinions; and 17 (2) All communications, evidence provided or discussed, and work product that discusses, analyzes, or addresses any legal 18 counsel giving Defendants advice about delaying an investigation into Fitch’s conduct after learning of the ISP 19 investigation, including any benefits of delaying until the ISP investigation was completed, why ISP’s direction to do what 20 they needed to do was not sufficient, and when and what advice was given relating to when the investigation would be 21 initiated. 22 B. Emails, Letters, Client Information: 23 (1) All opinions, analysis, or communications with ICRMP; 24 (2) All attorney-client communications related to the facts of the case (due to the broad scope of the topics); and 25 (3) All work product that analyzes the facts of the case. 26 27 /// 28 /// 1 C. Defendants’ Investigations of Fitch: 2 (1) All attorney-client communications related to both investigations and the follow-up decisions related to both Fitch 3 and Plaintiff, including from MSBT, EEM, AJH, or ICRMP; 4 (2) All work product analyzing either investigation of Fitch, including from MSBT, EEM, AJH or ICRMP; and 5 (3) All evidence gathered or discovered related to the 6 investigations of Fitch. 7 D. Recordings: 8 (1) All attorney-client communications; 9 (2) All evidence provided by Defendants to legal counsel for purposes of preparing for the recordings, including any 10 identification of student or staff Fitch may have been involved with, other reports, etc.; and 11 (3) All work product related to the recordings, including any 12 notes of prior discussions, outlines of questions, documents used to prepare or upon which were relied, any analysis or 13 opinions expressed related to the topics asked during interviews. 14 15 2. Defendants must also provide an adequate privilege log for their entire file in 16 accordance with Rule 26(b)(5)(A). 17 3. Defendants’ Motion to Seal Exhibit L to the Stoll Declaration in support of their 18 Response to Plaintiff’s Motion to Compel, Dkt. 27, is GRANTED. 19 4. Plaintiff’s Motion to Seal Exhibit 4 to the Casperson Declaration in support of 20 Plaintiff’s Reply to the Motion to Compel, Dkt. 30, is GRANTED. 21 5. Plaintiff’s Motions to Strike the Declarations of Williams, Haro, Fabricius, and 22 attorney Holinka (Dkt. 32, 33, 34) are DENIED as moot. The derivative Motions in 23 Limine as to Williams and Haro (Dkt. 32, 33) are DENIED without prejudice. 24 6. Defendants’ Motion to Strike the Expert Report of Lindy Aldrich, Esq., (Dkt. 37) 25 is DENIED without prejudice. 26 /// 27 /// 28 /// 1 7. Because the Scheduling Order will need to be modified, the parties are 2 | directed to file a stipulation or motion for a modified discovery plan and scheduling order 3 | not later than thirty (30) days from the date this Memorandum and Order is electronically 4 | filed. 5 IT IS SO ORDERED. 6 7 | Dated: April 5, 2023 ° Whip AX XC - ° SENIOR UNITED STATES URTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18