A batch of emails shows Hamilton County Schools' lawyer tampered with a hired investigator's probe into Ooltewah High School's harassment culture, according to civil attorneys for the student victims in the 2015 rape incident.
Civil attorneys say the 2016 correspondence is evidence of an argument they've made for months in Chattanooga's U.S. District Court: Not only was Hamilton County Schools ill-equipped to deal with this sexual abuse, but its lawyers refused to turn over key documents that would show whether they influenced the findings of its "so-called" independent investigation.
That's because its attorney, Scott Bennett, tried to soften the district's "legal exposure" in upcoming civil litigation by "floating" defense theories to investigating lawyer Courtney Bullard before she finished her Ooltewah report in 2016, according to a motion filed Thursday by civil attorneys. Then, when she presented drafts, Bennett offered legal revisions and other suggestions in the interests of the district, they say.
For instance, during one of their exchanges in April, Bennett asked Bullard to "suppose" the hazing of three students with a pool cue in 2015 didn't amount to a Title IX violation because it wasn't motivated by sexual gratification and therefore wasn't sexual violence under Tennessee law. Title IX is the federal statute designed to protect people against sexual discrimination and violations could open the district up to more liability.
Ultimately, Bullard said the school's hazing training was "deficient" and found a culture of bullying and hazing during the 2015-16 season — but no sexual harassment.
Bennett and the civil attorneys declined to comment Friday, but the civil attorneys' latest filing says this new evidence proves they are entitled to another five emails school board attorneys haven't handed over that may show more open collaboration.
"This log [from the district] shows Mr. Bennett to be copying Ms. Bullard about defense strategy during Ms. Bullard's investigation and before she wrote her 'independent' report," civil attorneys Eric Oliver and Justin Gilbert argued in their motion. "Plaintiffs firmly maintain they are entitled to review these communications because plaintiffs now have highly credible evidence that Ms. Bullard was not acting independently."
U.S. District Magistrate Judge Christopher Steger, who ordered the school board to release the emails earlier this month, could rule on this new motion without input or schedule a hearing so both sides can further argue their points. As of Friday afternoon, a hearing hadn't been scheduled.
Four freshman students say they were attacked during the Ooltewah High School basketball team's trip to Gatlinburg, Tenn., over Christmas 2015. One of the students had a pool cue forced up his rectum, puncturing his colon.
In March 2016, the board commissioned Bullard, an attorney with Spears, Moore, Rebman & Williams P.C., to conduct an investigation into the school's culture, as well as district policies following the rape.
Bullard's retention letter said she also needed to provide legal advice to the board. And while attorneys debated whether she had to turn over all of the emails, first drafts and notes she produced but didn't include in her final report, Bullard affirmed this view in a Sept. 15, 2017, affidavit in U.S. District Court: "My understanding was, this review and advice was in anticipation of litigation," she wrote.
As a result, school board attorneys continued to argue Bullard's work and communications with the school board were protected under attorney-client and work doctrine privileges. Those privileges, respectively, say communications between a lawyer and their client are secret, and that any underlying materials a lawyer creates in anticipation of litigation also deserve protection.
School board lawyers eventually agreed to turn over her investigative file days before a scheduled hearing on the issue.
But in the process, they repurposed Bullard as an expert witness and said her roughly 130 emails were still protected under a federal procedural rule. Suspicious civil attorneys said there still wasn't any attorney-client privilege just because board attorneys made Bullard wear a different hat — expert witness as opposed to independent investigator or attorney.
One of the newly released emails shows Bullard helped create that structure, according to Thursday's motion. Bullard admitted to inserting the "legal advice" part into her retention letter so she could have the option of wearing "conflicting" hats of neutral investigator versus defense lawyer, the civil attorneys said.
"You will see I included language about providing legal advice to HCDE so that we can maintain the option of preservation of attorney-client privilege," Bullard wrote, according to Thursday's court document.
Contact staff writer Zack Peterson at firstname.lastname@example.org or 423-757-6347. Follow him on Twitter @zackpeterson918.