As one BOT sock puppet to another, I must disagree. First, the attorney/client privilege argument's always been a loser. Not so sure about that. The engagement letter specifically states "FSS has been engaged to serve as independent external legal counsel to the Special Investigative Task Force .....". It also states "Although our services are limited at this time to the specific matters described herein, the general terms of this letter will apply to any other matters that FSS herein undertakes to handle for the trustees or the Special Investigative Task Force." Clearly this is prima-facie evidence that an attorney client relationship existed.
"How can an "independent investigator" also be your attorney? Aren't they mutually exclusive? Not necessarily. The courts are split on the matter with some ruling in favor of ACP and others against depending on the facts. In Sandra T.E. v. South Berwyn School District 100, 49 the Seventh Circuit Court of Appeals was called upon to analyze this issue in the context of claims of sexual molestation against an elementary school teacher and his school district employer.50 Sidley Austin LLP was hired by the school board to conduct an investigation and to provide legal advice to the district.51 Sidley and the school board entered into a written retention agreement.52 The board sent a letter to all parents advising them of Sidley’s retention.53 Sidley interviewed both current and former employees of the district and some thirdparty witnesses.54 None of the interviews was recorded; the Sidley attorneys took notes during the interviews and later drafted memoranda summarizing them.55 Sidley provided the school board with a written executive summary as well as an oral report of the legal advice it was retained to provide.56 The victims and their families sued the school district in January 2005.57 Plaintiffs first sought production of the Sidley materials from a Sidley partner by way of a deposition subpoena with an accompanying request for documents.58 Sidley turned over more than 1,000 pages of documents but withheld the witness interview summaries and other internal legal memoranda.59 Plaintiffs moved to compel the school district to turn over the materials, and the trial court so ordered, finding that Sidley was hired as an “investigator, not as an attorney.”60 When plaintiffs found out that these materials were in Sidley’s 286 APPLYING THE ATTORNEY-CLIENT PRIVILEGE TO INVESTIGATIONS 81563_10_c10_p281-338.indd 286 1563_10_c10_p281-338.indd 286 11/28/11 12:23 PM 1/28/11 12:23 PM possession, and not in the school district’s, plaintiffs subpoenaed Sidley directly.61 When Sidley continued to assert a privilege claim, plaintiffs sought an order compelling Sidley to produce the documents.62 The trial court, reiterating the view that Sidley was an investigator, not an attorney, ordered production, and Sidley appealed.63 The Seventh Circuit reversed, concluding that Sidley was acting as an attorney while investigating the details of the allegations of sexual molestation.64 The appellate court concluded that the trial court erred by not considering the engagement letter:And I think the Paterno Estate will get everything since it's all relevant. Maybe but I believe defendants will vigorously challenge what information is relevant and what is not. The theory is that Freeh shaped his report to reach a predetermined end by picking and choosing what when in. Irrelevant. The only thing that is relevant is that the NCAA relied on a document (Freeh Reprt) that it believed to true and correct and had no reason to believe otherwise. The NCAA was not responsible for auditing the work of FSS.Obviously, it would all be relevant in order to see what went into the report and what didn't..
My hope is that some news organization files suit to get the documents. Never going to happen IMO
It'll be interesting to see which side the Paterno Estate takes in that case.
I'm more interested to see how Lubrano and Doren will now behave since being elevated to the executive committee. It will be interesting to see if they do an about face by fighting the release of documents at every turn or still continue to place the university in legal harm's way by looking to make public all of FSS's work product. If the latter, then they should be removed for not living up to their fiduciary obligation of protecting the university.
