Thomas v. Marshall Public Schools

Background

Mary Kay Thomas alleged that Marshall Public Schools demoted her from her position as principal of Marshall Middle School in retaliation for displaying an LGBTQ Pride Flag in the school cafeteria in 2020. In 2021, Superintendent Jeremy Williams placed Thomas on administrative leave pending an investigation into workplace allegations and hired Pemberton Law, P.L.L.P. to conduct the investigation. Pemberton attorney Joshua Heggem conducted 19 interviews and prepared an Investigation Report.

The report did not substantiate most allegations against Thomas but found it more likely than not that she created a negative work environment. Defendants produced the report and other investigation-related materials in discovery and acknowledged that the report directly informed the decision to demote Thomas. Thomas sought to depose Heggem and obtain additional documents. Defendants and Pemberton objected based on attorney-client privilege and the work-product doctrine.

Thomas also sought more time for discovery and motions because of concerns about missing text messages and emails from the personal devices of defendants Bill Swope, Jeff Chapman, and Williams. The record showed that Swope and Chapman testified they routinely deleted messages, that Williams’s search for messages might have been incomplete, and that defense counsel had not directly supervised the collection of the defendants’ electronic communications.

Protective Orders and Heggem’s Deposition

The court rejected Pemberton’s argument that the heightened test for deposing opposing trial counsel applied to Heggem. Heggem was involved in a completed workplace investigation and was not defendants’ litigation counsel in this case.

The court held that the work-product doctrine did not protect Heggem’s investigation or report because defendants did not show that the investigation was prepared because of a specific prospect of litigation. The court also held that, even if protection otherwise applied, defendants waived it by relying on the investigation and report as the basis for their defense while seeking to prevent Thomas from examining the investigation’s substance. Defendants further waived protection over the investigation-related subject matter by intentionally disclosing the report, more than 100 emails from Heggem, and notes concerning the investigation’s scope and design.

The court concluded that attorney-client privilege did apply to any legal advice Heggem may have given about whether to conduct the investigation or how to respond to its findings and conclusions. The court found no waiver of that protection on those topics because defendants had not disclosed documents reflecting Heggem’s advice about them. The court therefore allowed Thomas to depose Heggem about what happened during the investigation, its design, scope, and execution, his findings and conclusions, and the factual bases for those conclusions. The protective-order motions were granted in part and denied in part, with the motions granted in all other respects.

Motion to Compel

The court granted in part and denied in part Thomas’s motion to compel. Pemberton and defendants were ordered to produce documents and communications withheld as privileged or protected to the extent they concerned what happened during the investigation, its design, scope, execution, findings, conclusions, or the factual bases for those conclusions.

The court also ordered production of documents reflecting or describing attorney Kristi Hastings’s advice or communications with defendants about whether to conduct the investigation, placing Thomas on administrative leave during the investigation, or changing Thomas’s position at the school. The court found that defendants’ purposeful disclosure of notes and a school-board-meeting transcript concerning Hastings’s advice created a subject-matter waiver. The ordered materials were due by September 26, 2023. The motion to compel was denied in all other respects.

Extension of Deadlines and Electronic Discovery

The court granted in part and denied in part Thomas’s motion to extend discovery and motion deadlines. Fact discovery was extended to November 6, 2023, but only for the production ordered in the decision, Heggem’s deposition, and the electronic discovery described in the order. The court denied Thomas’s vague request for additional unspecified discovery. The non-dispositive-motion deadline was also extended through November 6, 2023, but only to enforce the order and not for other purposes.

The court required defense counsel to collect the personal devices used for electronic communications by Swope, Chapman, and Williams and deliver them to a neutral electronic-discovery vendor for imaging by September 13, 2023. Defense counsel also had to identify related cloud-storage locations and provide access information by September 20, 2023. The parties were directed to meet and confer about search parameters and terms. Communications with defendants’ litigation counsel were excluded from production, while communications with Pemberton had to be produced or logged consistently with the order. Deleting communications from the devices after entry of the order would violate the order and could result in sanctions.

Disposition

Magistrate Judge Dulce J. Foster granted in part and denied in part both protective-order motions, granted in part and denied in part Thomas’s motion to compel, and granted in part and denied in part Thomas’s motion to extend discovery and motion deadlines. The order addressed discovery and privilege issues; it did not resolve the merits of Thomas’s retaliation allegations.