08-3344 Sandra T.E. v. South Berwyn School District 100

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Evidence
Work-product privilege

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.

"The engagement letter spells out that the Board retained Sidley to provide legal services in connection with developing the School Board's response to Sperlik's sexual abuse of his students. Sidley's investigation of the factual circumstances surrounding the abuse was an integral part of the package of legal services for which it was hired and a necessary prerequisite to the provision of legal advice about how the District should respond. Although an engagement letter cannot reclassify nonprivileged communications as 'legal services' in order to invoke the attorney-client privilege, see Burden-Meeks, 319 F.3d at 899 (business advice cannot be considered legal services), the conduct of Sidley attorneys during the investigation confirms that they were acting in their capacity as attorneys. During the confidential interviews with school-district employees, the attorneys provided so-called 'Upjohn warnings' emphasizing that Sidley represented the School Board and not the employee and that the School Board had control over whether the conversations remained privileged. No third parties attended the interviews, the School Board received Lassar's report of the firm's findings during an executive session not open to the public, and the written executive summary that Sidley turned over to the Board was marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product.' If more were needed, affidavits submitted into the record by Lassar, his Sidley colleagues, and the School Board president emphasized that Sidley had been hired to provide legal advice in the context of the facts it uncovered during the internal investigation. Because the Sidley lawyers were hired in their capacity as lawyers to provide legal services- including a factual investigation-the attorney-client privilege applies to the communications made and documents generated during that investigation."

Reversed.

08-3344 Sandra T.E. v. South Berwyn School District 100

Appeal from the United States District Court for the Northern District of Illinois, Hibbler, J., Sykes, J.

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