## Facts

- An elementary-school band teacher allegedly sexually abused multiple female students over several years; victims claimed the principal knew or should have known and failed to act.
- Students and some parents sued the school district and the principal in federal court, alleging deliberate indifference and related theories for failure to protect students.
- The school board retained outside counsel (Sidley Austin LLP) under an engagement letter to investigate the administration’s response to the abuse allegations and provide legal services.
- Counsel interviewed current and former employees and other witnesses; interviews were not recorded, but attorneys created notes and memoranda; interviewees were told the communications were confidential and privileged.
- Counsel reported results orally to the board in a closed executive session and provided a written executive summary marked as privileged and work product.
- In discovery, plaintiffs subpoenaed the law firm and sought production of interview notes, memoranda, and related internal materials.
- The law firm produced limited non-core materials but withheld notes, memoranda, and legal analysis as protected by attorney-client privilege and the work-product doctrine.
- The district court ordered production, reasoning the firm primarily performed investigative (non-legal) services; the law firm and school district pursued immediate appellate review.

## Issues

1. Whether interview notes, memoranda, and related internal investigation materials prepared by outside counsel were protected from discovery by attorney-client privilege and the work-product doctrine.
2. Whether the court of appeals had interlocutory jurisdiction to review the discovery order compelling disclosure of allegedly privileged materials.

## Decision

- The Seventh Circuit reversed the discovery order and remanded.
- It held the challenged materials were protected by the attorney-client privilege because the investigation was conducted to provide legal advice to the school board.
- It held the materials were also protected work product because they were prepared in anticipation of, or because of, litigation and reflected attorney mental impressions.
- It exercised collateral-order jurisdiction to review the order in the procedural posture presented, notwithstanding an intervening Supreme Court decision limiting collateral-order review of privilege rulings.

## Legal Principles

- Attorney-client privilege protects confidential communications made for the purpose of obtaining or providing legal advice; fact-gathering by lawyers can fall within the privilege when undertaken to render legal advice.
- Courts apply a functional inquiry: the privilege turns on the purpose and context of the attorney’s role, not on labels such as “investigation.”
- Work product under Federal Rule of Civil Procedure 26(b)(3) covers documents prepared in anticipation of litigation or because of litigation; opinion work product (mental impressions and legal theories) receives heightened protection and is rarely discoverable.
- Discovery orders compelling disclosure of privileged materials can qualify for interlocutory review when they conclusively decide the privilege question, are separate from the merits, and would be effectively unreviewable after final judgment because confidentiality would be lost upon disclosure.

## Conclusion

The Seventh Circuit concluded that outside counsel’s internal investigation into the district’s response to sexual-abuse allegations was conducted to provide legal advice amid actual or imminent litigation, making the resulting interview notes and memoranda both privileged attorney-client communications and protected work product, and it reversed the order compelling their production.


Sandra T.E. v. South Berwyn Sch. Dist. 100, 600 F.3d 612 (7th Cir. 2010)