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Friday, April 02, 2010

Ind. Decisions - More on: 7th Circuit today decides case re attorney-client privilege and the work-product doctrine

Updating this ILB entry from March 30th, re the 7th Circuit opinion of that date in Sandra T.E., et al. v. South Berwyn School District 100 and Sidley Austin LLP, Tresa Baldas reports today in The National Law Journal in a story that begins:

The attorney-client privilege protects notes and memorandums that Sidley Austin wrote while investigating alleged sexual abuse by a music teacher, a federal appeals court said on Tuesday.

In an opinion issued Tuesday, the 7th U.S. Circuit Court of Appeals ruled that handwritten notes and memorandums relating to interviews produced by Sidley Austin lawyers in the course of their investigation are protected by the attorney-client privilege and the work-product doctrine, even though the lawyers weren't handling the lawsuit that sparked the investigation.

The South Berwyn School District in Berwyn, Ill., had hired Sidley Austin in 2005 to offer advice and investigate allegations that the district failed to respond appropriately to claims that a teacher was molesting students for years. A civil lawsuit had been filed against the district for allegedly turning a blind eye to the alleged molestation, although Sidley Austin was not hired to represent the school in the litigation.

In the course of its investigation, the firm interviewed many school employees, took notes and reported that information to the school board. The plaintiffs sued to gain access to those notes, and a lower court agreed that they should have the notes because, it reasoned, the lawyers were acting as investigators, not lawyers.

A three-judge panel of the 7th Circuit disagreed. It issued its order on Feb. 25, one day after oral argument, and then followed up with a full opinion on Tuesday.

In Sandra T.E. v. South Berwyn School District 1000 and Sidley Austin, Judge Diane Sykes wrote that both the U.S. Supreme Court and other circuits have "concluded that when an attorney conducts a factual investigation in connection with the provision of legal services, any notes or memoranda documenting client interviews or other client communications in the course of the investigation are fully protected by the attorney-client privilege."

Sykes also pointed to an engagement letter between the law firm and the school district that "spells out that the Board retained Sidley to provide legal services in connection with developing the School Board's response" to the sexual abuse allegations.

Posted by Marcia Oddi on April 2, 2010 09:32 AM
Posted to Ind. (7th Cir.) Decisions