## Facts

- A student sued a public university under Title IX, alleging a sexual assault and that the university’s response caused a hostile educational environment.
- The student sought support from a nonprofit advocacy organization that also provided legal services through affiliated advocates.
- In discovery, the university sought production of over 150 emails and related materials involving the student, the advocacy organization/advocates, and the student’s parents.
- The student, the advocacy organization, and the parents withheld documents, asserting a victim–advocate privilege.
- The court ordered in camera review of the withheld materials and addressed three motions to compel directed to the student, the advocacy organization, and the parents.

## Issues

1. Whether federal common law recognizes a privilege for confidential communications between a sexual-assault victim and a victim advocate in a federal-question case.
2. If so, whether the privilege is absolute or qualified, and what balancing standard governs disclosure.
3. Whether the student waived any privilege by filing suit and attaching advocacy-related materials to pleadings.
4. How the privilege and Federal Rule of Civil Procedure 26(b) apply to specific categories of emails and attachments (victim–advocate communications, advocate–third party communications, informational links, and university-to-student communications).

## Decision

- The court recognized a qualified federal common-law privilege for confidential communications between a sexual-assault victim and a victim advocate.
- The court held the privilege is not absolute and may be overcome when the relevance and evidentiary value of particular communications outweigh the public policy favoring confidentiality.
- After in camera review, the court required production of certain items that were not privileged or whose relevance outweighed confidentiality, including:
  - communications reflecting the student’s beliefs about the viability of her claim,
  - materials concerning efforts to obtain post-assault accommodations, and
  - communications from the university to the student.
- The court protected many direct victim–advocate communications as privileged where their evidentiary value was limited.
- The court held an advocate’s communications with third parties, and an email merely forwarding a general informational link, were not protected victim–advocate communications.
- The court rejected a broad waiver theory based on filing the lawsuit or attaching limited advocacy-related exhibits.
- The motions to compel were granted in part and denied in part.

## Legal Principles

- In federal-question cases, privileges are governed by federal common law under Federal Rule of Evidence 501.
- Privileges are narrowly recognized only when they serve sufficiently important interests to outweigh the need for probative evidence.
- Confidential sexual-assault victim–advocate communications are protected by a qualified federal privilege grounded in the need for trust and candor and in public interests in encouraging reporting and support-seeking.
- The qualified privilege can be overridden on a document-specific basis when relevance and probative value outweigh the policy favoring confidentiality, often requiring in camera review.
- The privilege generally covers confidential victim-to-advocate communications, but does not extend to communications that are not victim–advocate communications in substance (e.g., advocate-to-third-party communications, general informational materials, or university-to-student emails).
- A plaintiff does not broadly waive the victim–advocate privilege merely by filing suit, alleging advocacy involvement, or attaching limited advocacy-related documents to pleadings.

## Conclusion

The court adopted a qualified federal victim–advocate privilege, applied a relevance-versus-confidentiality balancing test to specific documents after in camera review, found no blanket waiver, and ordered only limited production while protecting most core victim–advocate communications.


Doe v. Old Dominion Univ., 289 F. Supp. 3d 744 (E.D. Va. 2018)