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Doe v. Phillips Exeter Academy

United States District Court, D. New Hampshire

October 13, 2016

Father Doe and Mother Doe as Parents and next friends of John Doe
v.
Phillips Exeter Academy Opinion No. 2016 DNH 181

          Max D. Stern, Esq.

          Megan C. Deluhery, Esq.

          Samantha Dowd Elliott, Esq.

          W. Daniel Deane, Esq.

          Steven M. Richard, Esq.

          Joel Rosen, Esq. Stephen J. Judge, Esq.

          MEMORANDUM ORDER

          Joseph N. Laplante United States District Judge.

         Resolution of Phillips Exeter Academy's motion for a protective order turns on whether reports prepared by an investigator hired by PEA's outside counsel enjoy the protection of the attorney-client privilege and, if so, whether PEA has waived that protection. Concluding that the reports are likely not privileged and that, even if they are, PEA waived the privilege by putting the communications at issue in this litigation and disclosing their contents, the court denies PEA's motion.

         I. Background

         In February, two minor students at PEA engaged in a sexual encounter. One of them -- Jane Roe[1] -- later reported the encounter to a counselor, describing it as “uncomfortable” and possibly a sexual assault. PEA administrators, upon learning of this report, contacted their retained outside counsel who, in turn, retained attorney Kai McGintee of Bernstein Shur as an “independent investigator . . . to perform an investigation into the complaint.” Second Mischke Decl. (document no. 25-1) ¶ 4. Attorney McGintee was not retained by PEA itself. Id. ¶ 5.

         Attorney McGintee reviewed documents, interviewed witnesses -- including John Doe, Jane Roe, and one other student -- and issued two reports to PEA and its outside counsel, recounting her findings and conclusions. First Mischke Decl. (document no. 16-4) ¶¶ 15-19. PEA placed John on Dean's Leave for the spring 2016 trimester and, ultimately, requested that he withdraw from the school. PEA cited Attorney McGintee's findings and her reports as, at least in part, the basis for its decision to do so.[2]

         II. Analysis

         Under Federal Rule of Civil Procedure 26, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case . . . .” Fed.R.Civ.P. 26(b)(1) (emphasis added). The plaintiffs have requested that the defendants produce Attorney McGintee's reports. The defendant here seeks a protective order, see id. Rule 26(c)(1), to the effect ...


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