United States District Court, D. New Hampshire
Father Doe and Mother Doe as Parents and next friends of John Doe
Phillips Exeter Academy Opinion No. 2016 DNH 181
C. Deluhery, Esq.
Samantha Dowd Elliott, Esq.
Daniel Deane, Esq.
M. Richard, Esq.
Rosen, Esq. Stephen J. Judge, Esq.
N. Laplante United States District Judge.
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
February, two minor students at PEA engaged in a sexual
encounter. One of them -- Jane Roe -- 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.
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
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 ...