Ooltewah rape investigation: Judge rules school board lawyers must turn over communications

Staff Photo by Dan Henry / The Chattanooga Times Free Press- 2/15/16. Defendants appear before Judge Robert Philyaw during a preliminary hearing for the Ooltewah High School basketball coaches and the school's athletic director in Hamilton County Juvenile Court on February 15, 2016. Hamilton County District Attorney Neal Pinkston charged head coach Andre "Tank" Montgomery, assistant coach Karl Williams and Athletic Director Allard "Jesse" Nayadley with failing to report child abuse or suspected child sexual abuse in connection with the rape of an Ooltewah High School freshman by his basketball teammates Dec. 22, 2015.

Civil attorneys for the Ooltewah High School assault victims will soon get a deeper look into the Hamilton County Board of Education's thought process during the 2016 investigation into the school's sexual harassment culture.

U.S. District Magistrate Judge Christopher Steger ruled Friday that school district attorneys must turn over the roughly 130 communications as soon as possible that involved lawyer Courtney Bullard as she worked on a public report detailing the hazing culture at Ooltewah's basketball program.

The ruling is a victory for the civil attorneys who believe the school district was ill-equipped to deal with sexual abuse and failed to protect two students who were attacked during the 2015 basketball tournament in Gatlinburg, Tenn.

But the issue likely isn't over: Though school board attorneys promised to follow Steger's ruling, they said some communications may fall outside of the order, including ones that deal with proposed revisions to hazing and bullying policies.

"That is relevant," argued Eric Oliver, a plaintiffs' attorney for one of the students, "because our expert witness is going to say our policies here [in Hamilton County] are deficient."

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Regardless, Friday's ruling gave momentary clarity to a long-fought issue in the case: Whether Bullard's work and communications with the school board and its lawyer, Scott Bennett, are protected by the attorney-client and work doctrine privileges.

Those privileges, respectively, say communications between a lawyer and his client are secret, and that any underlying materials a lawyer creates in anticipation of litigation also deserve protection.

In the last several months, as the victims sought not just Bullard's report, but the underlying notes, interviews and drafts she created in the process, school board lawyers asserted both privileges.

But after hearing arguments Friday in Chattanooga's U.S. District Court, Steger said neither privilege applied here.

The school board hired Bullard, a lawyer with the firm Spears, Moore, Rebman & Williams, to investigate Ooltewah's compliance with district policies in March 2016 following the December rape of a freshman and to provide legal advice.

Over the next several weeks, Bullard interviewed 40 people and eventually compiled a 24-page report that concluded the district and Ooltewah's training on hazing was "deficient" and included 22 recommendations to help prevent future incidents.

Bullard communicated with Bennett and some board members throughout the process, the 130 communications show, and her report was sealed under attorney-client privilege when she finished it in June.

The turning point, Steger said, was when the board, Bullard's client, voted to release her report in August 2016.

"When the [board] elected to publish the report by Courtney Bullard, it waived the attorney-client privilege and the work product doctrine with respect to the report," he said.

Later, the school board's lawyers made Bullard their expert witness in October 2017, releasing her interview notes and other materials, including the list of the 130 communications. When the victims' attorneys requested the substance of those conversations, the board lawyers said no.

They said Bullard was their expert witness, and a federal procedural law says communications between a lawyer and their expert witness are shielded.

Steger said Friday school lawyers couldn't retroactively apply that protection to Bullard though, because it didn't change one very crucial fact: that school board members waived the attorney-client privilege when they voted to release her report.

It's unclear to the victims' attorneys and the public what is in the 130 communications. But anything related to the county's compliance with hazing and bullying policies could help the victims' attorneys with their case.

The Hamilton County Board of Education's policy on student harassment, hazing and bullying did not meet the requirements of state law and wasn't on par with similar policies in other large school districts across the state, the Times Free Press reported in January 2016.

Since that time, according to court documents in the case, the school district has worked on many of Bullard's suggestions:

County principals have been told to launch a cyberbullying or harassment investigation within 48 hours of a report; all administrators are trained on reporting guidelines; a compliance point-person has been identified on every campus; and 82 percent of schools received training on how to identify and deal with bullying, among other improvements.

The remaining 18 percent of schools were supposed to be trained by June 2017, according to the court record.

A district spokesman could not immediately confirm Friday whether that happened.

In the meantime, this case is scheduled for trial on Sept. 4 in Chattanooga's U.S. District Court. Parties could move to dismiss or settle the case before that time.

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.