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Chattanooga Times Free Press (Tennessee)
A private lawyer created 130 or so documents while producing a report on Ooltewah High School's sexual harassment culture, and civil attorneys for the December 2015 assault victims are now demanding to see them.
Between emails, three drafts and other discussions and reports, attorney Courtney Bullard communicated with the Hamilton County Department of Education numerous times before her 24-page report on the school became public in August 2016.
But what's in those private communications? Is there proof district officials knew about the sexual abuse and failed to protect its students? Bullard concluded in her report there was no evidence the school system or Ooltewah administrators knew or should have known four freshman players would be assaulted during the basketball team's trip to Gatlinburg, Tenn., days before Christmas 2015.
But civil plaintiffs' attorneys have argued otherwise since they filed a pair of lawsuits in Chattanooga's U.S. District Court in late 2016. And their motion Monday to see the documents is the latest salvo in a nine-month battle to view Bullard's entire investigative file.
The school district lawyers didn't file a response Tuesday, and multiple efforts to reach them were unsuccessful. They have previously argued Bullard's interview notes, rough drafts, emails and other memorandums are protected by the attorney-client privilege and the work product doctrine. A yet-to-be-scheduled hearing on the matter is expected.
Bullard mentioned the attorney-client privilege and work doctrine in an April 29 letter to one school district lawyer. One sentence gave a possible clue into the contents of some of the 130 documents: "Many of the items requested are part of a student's disciplinary records and therefore protected under the Federal Education Rights and Privacy Acts," Bullard wrote.
Three former Ooltewah basketball players were found guilty in August 2016, one for aggravated rape and two for aggravated assault. So it could be a reference to one of them.
Regardless, the plaintiffs' attorneys say the school district needs to turn over those communications.
Bullard and the school district don't have an attorney-client relationship, they say, because she was hired in March 2016 to independently investigate the culture of sexual harassment and bullying at Ooltewah. A copy of Bullard's contract shows the district also asked her to share her findings and provide legal advice along the way. Even still, the plaintiffs' attorneys say, the school district waived any kind of attorney-client privilege when it publicly released Bullard's report.
"The report was, and remains, publicly available online through a number of sources," Eric Oliver, one of the plaintiffs' attorneys, wrote in Monday's motion. "Thus, as described further below, this case finds similarity to the high-profile sexual harassment case at Baylor University in Waco, Texas, where an independent report released publicly required disclosure of the underlying investigative file, too."
The district has fought many of these requests since the plaintiffs' attorneys began asking for Bullard's file in March. Both parties were scheduled to argue about it in October before U.S. District Magistrate Judge Christopher Steger. Then, at the last minute, district attorneys agreed to hand over Bullard's file and made her an expert witness.
The plaintiffs' attorneys didn't get everything.
Some attorneys who aren't involved in the case said the seemingly transparent move was strategic: The district cited a procedural law that says any communications between a lawyer and their expert witness also are protected, court records show.
So, while the plaintiffs' attorneys learned about the existence of 130 documents, they didn't learn what was in them.
"The Hamilton County Department of Education has repurposed Ms. Bullard as its sole expert," Oliver wrote. "By doing so, it appears [HCDE] is taking the position that [its] waived privileges are now revived.
"But that bell cannot be unrung."
Contact staff writer Zack Peterson at zpeterson@times freepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.
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