## Facts

- Michael A. Wartell served as chancellor of Indiana University–Purdue University Fort Wayne (IPFW).
- Wartell sought a waiver of Purdue’s mandatory retirement age policy, but Purdue’s president, France Córdova, denied the request.
- Wartell filed an internal complaint against Córdova, alleging harassment and discrimination based on Wartell’s sex and age.
- Because the complaint was against the university president, Purdue’s board of trustees adopted a special, one-time procedure rather than Purdue’s ordinary internal process.
- Under the special procedure, Purdue would appoint an “independent investigator” acceptable to both Wartell and Córdova to conduct interviews and prepare a report for a three-trustee panel that would issue a binding decision on the complaint.
- Purdue retained Indiana attorney John Trimble to serve as the investigator.
- Trimble interviewed Wartell, Córdova, and about twelve other individuals as part of the investigation.
- During Trimble’s interview of Wartell, Trimble did not tell Wartell that he was acting as Purdue’s lawyer.
- Trimble prepared a written report and submitted it to the three-trustee panel; the report was not labeled as privileged or as an attorney-client communication.
- Based on Trimble’s report, the trustee panel found no discrimination or harassment.
- Wartell later sued Purdue in federal court, asserting claims that included sex discrimination and breach of contract.
- In discovery, Wartell requested production of Trimble’s report and related documents; Purdue refused, asserting attorney-client privilege and the work-product doctrine.
- Wartell moved to compel production. A magistrate judge granted the motion, concluding the attorney-client privilege did not apply because Trimble’s work did not involve providing legal advice.
- Purdue filed objections to the magistrate judge’s discovery order under Federal Rule of Civil Procedure 72(a), seeking district-judge review.

## Issues

1. Whether the magistrate judge’s order compelling production of Trimble’s report and related documents was clearly erroneous or contrary to law under Rule 72(a).
2. Whether Purdue established that Trimble’s investigative report and associated materials were protected by the attorney-client privilege, given that Trimble functioned as an agreed “independent investigator” rather than as disclosed legal counsel.
3. Whether the materials were protected work product, including whether they were prepared in anticipation of litigation rather than as part of an internal complaint-resolution process.

## Decision

- The district court overruled Purdue’s Rule 72(a) objections and affirmed the magistrate judge’s order compelling production of Trimble’s report and related documents.
- The court rejected Purdue’s attorney-client privilege claim as to the investigative report and associated materials on the record presented.
- The court rejected Purdue’s work-product claim as to the investigative report and associated materials on the record presented.
- The court required Purdue to produce the compelled materials within the timeframe set by the discovery order.

## Legal Principles

- A party asserting the attorney-client privilege bears the burden to show a confidential communication was made for the purpose of obtaining or providing legal advice within an attorney-client relationship.
- An attorney’s fact-gathering performed in the role of an agreed “independent investigator” may fall outside the attorney-client privilege when the assignment is investigative rather than legal advisory work.
- Work-product protection generally applies only to materials prepared because of the prospect of litigation; materials created for ordinary business or internal administrative purposes (such as resolving an internal complaint) are not protected merely because litigation later occurs.
- Under Rule 72(a), a district judge will modify or set aside a magistrate judge’s nondispositive discovery order only if it is clearly erroneous or contrary to law.

## Conclusion

The court affirmed the magistrate judge’s discovery ruling requiring Purdue to produce attorney John Trimble’s “independent investigator” report and related documents because Purdue did not show that the materials were confidential legal advice communications or that they were prepared in anticipation of litigation, and Purdue’s Rule 72(a) objections did not establish clear error or a legal mistake.


Wartell v. Purdue University, Case No. 1:13-CV-99 RLM-APR (2014)