Civil attorneys for the Ooltewah High School rape victims are pushing a private lawyer who produced a report on hazing to release her entire investigative file.
The attorneys for the young men assaulted in a December 2015 basketball trip believe the notes, tapes and emails Courtney Bullard created but omitted from her August 2016 report on the school's hazing culture could prove the Hamilton County Department of Education knew about sexual abuse and failed to protect its students.
There's just one problem: Bullard says the file is protected under attorney-client privilege and work product doctrine. School board lawyers won't give up sensitive information without a fight.
The question is set for argument Wednesday in U.S. District Court here. The attorneys declined to comment for this article, but other local lawyers and court records say the issue is ripe for debate.
On one hand, civil attorneys have to aggressively seek information from their opponents with written questions, requests and depositions. But the attorney-client relationship is supposed to protect certain things.
"If you shoot somebody and I have an investigator go out, canvass the neighborhood, take notes, record people's recollections — all of that is work product doctrine and it's connected to client privilege," said defense attorney Bill Speek. "You have to allow people to investigate and work on behalf of their clients without fear that everything they do is being turned over to the other side."
Here, the victims' attorneys contend the Department of Education never retained Bullard for legal advice. They said federal rules require school systems to investigate incidents such as the Ooltewah assaults and develop plans to prevent similar problems.
That's what Bullard was doing in March 2016 when she roamed the high school's halls for seven weeks and interviewed 40 students, parents and teachers, the attorneys said. She found sexual harassment existed and offered suggestions to the department in a 22-page report. In the fall of 2016 the school board voted to unseal her findings, leading the victims' attorneys to their next point.
"Even if the privilege were applicable, the Hamilton County Department of Education waived the privilege when it publicly released the Bullard Report," attorney Justin Gilbert wrote in a motion.
Bullard, in an affidavit to the court, had a different point of view.
She said the department hired her in March 2016 to conduct the investigation and provide legal advice. She gave counsel throughout the process, did not disclose the details of her investigation and continues to keep her records in a secure location.
"My understanding was that this review and advice was in anticipation of litigation," Bullard said in her Sept. 15 affidavit.
The first victim sued the department in federal court about a month after Bullard's report was made public. The teenage plaintiff was raped during the Ooltewah basketball team's trip to Gatlinburg, Tenn., just days before Christmas in 2015.
Months later, a second victim filed a complaint. The cases were consolidated so attorneys can share evidence more fluidly.
Three former Ooltewah basketball players were found guilty in August 2016, one of aggravated rape and the others of aggravated assault.
Gilbert and other victims' attorneys say Bullard produced a lot of work that didn't go into the report.
They want all interview notes, witness statements, early drafts of her report and any communications Bullard and her firm, Spears, Moore, Rebman, and Williams, exchanged about the investigation. They're also asking for paperwork on the amount of hazing and bullying training that Ooltewah employees Andre Montgomery, Jesse Nayadley and Jim Jarvis received.
They point to a West Texas case where 10 women sued Baylor University, accusing the school's athletic programs of having a culture of sexual violence leading to assaults. Like Hamilton County, the school hired a law firm to investigate the accusations and publicly released the final report.
Facing similar questions, U.S. District Judge Robert Pitman ruled in August that Baylor waived its attorney-client privilege when it released the full report to the public, Gilbert said. But in a split decision, Pitman also ruled that interview memoranda, notes, emails, presentations and other "documents and tangible things" prepared as part of the law firm's investigation were protected.
Charles Purcell, an attorney for the Hamilton County Department of Education, could not be reached for comment. But in a motion, Purcell said he would be relying on Bullard's affidavit and looked forward to discussing the issue in court.
Contact staff writer Zack Peterson at firstname.lastname@example.org or 423-757-6347. Follow him on Twitter @zackpeterson918.