Court Concludes County Waived Attorney Client Privilege to Fire Department Disciplinary Investigation

An inadvertent disclosure of an internal disciplinary investigative report by Bedford County, Virginia constituted a waiver of any attorney-client privilege that otherwise would have applied, according to a ruling last week by Senior US District Court Judge Norman K. Moon.

The case is one we covered here last year, involving a volunteer EMT who was sexually assaulted and abused by a career lieutenant while participating in ride-along training with the Bedford County Department of Fire & Rescue when she was a minor.

Identified as Jane Doe in the complaint, she was sexually assaulted by Lieutenant Larry Scott Hawkins during a ride-along training session in February, 2018. Doe, 17 at the time, was a student in a county-sponsored EMT class, and required to participate in the ride-along program. Hawkins, 52, pled guilty to felony computer solicitation and misdemeanor assault. He was sentenced to ten years in prison, three to serve.  

Doe’s lawsuit alleges that county officials were aware that Hawkins had an extensive criminal record, which according to the complaint included convictions for abduction, use of a firearm, brandishing a firearm, and assault and battery. Nevertheless, he was hired in 2008 and later promoted to lieutenant.

When the county first became aware of Doe’s allegations, then-Bedford County Administrator Carl Boggess retained outside counsel to oversee an investigation. The investigation was conducted by a Sergeant with the Bedford County Sheriff’s Office under the attorney’s direction. As explained by Judge Moon:

• Boggess candidly admitted that “[o]ne of the foremost goals in having this investigation conducted under the direction and guidance of outside counsel was to preserve the product of the investigation” from disclosure, under the attorney-client privilege and work-product protection. Boggess further explained that “[t]he County needed to determine if there was a problem within its ranks and have the freedom to address problems, if the investigation revealed any problems, in a confidential manner with the guidance of counsel.”

As part of a state court suit filed by Doe against Hawkins in January, 2019, Doe’s attorney filed a subpoena seeking “the employment file of Larry Scott Hawkins,” and “any and all records and/or reports of investigations conducted in the period after January 1, 2011 regarding allegations of misconduct by Larry Scott Hawkins.” In responding to the subpoena, the county released the investigation report.

Doe later filed suit against the county in US District Court for the Western District of Virginia, incorporating allegations that cited directly to the investigation report. Shortly thereafter, the county realized its mistake and filed a “clawback” motion seeking a protective order to prevent Doe from using the confidential information. In denying the county’s motion, Judge Moon ruled:

• The party claiming attorney-client privilege has the burden of demonstrating that it applies and that the privilege was not waived.
• A party may waive privilege and thus expose to discovery otherwise protected materials by disclosing such materials.
• The Court need not decide whether the Report was protected by attorney-client privilege or work-product protection because, assuming it were protected by both, the County waived the privilege and protection.
• At the outset, the parties dispute whether the Report was “inadvertently” or “involuntarily” disclosed to Plaintiff’s counsel, or indeed, “intentionally” and “voluntarily” disclosed as Plaintiff contends.
• The Court finds, regardless whether privilege or work product protection applies, that the County inadvertently disclosed the Report to Plaintiff’s counsel.
• Plaintiff’s evidence convincingly demonstrates that Plaintiff’s counsel received their first and only copy of the Report included in the County’s April 10, 2019 production in response to Plaintiff’s counsel’s subpoena to the Bedford County Custodian of Records.
• The County not only waited a substantial amount of time before acting to rectify the error in its production of the Report to Plaintiff’s counsel, but it had multiple, discrete opportunities to do so that would have moved a party diligently seeking to vindicate their rights to act.
• Instead, for forty days, the County did not act. While Plaintiff’s counsel received a copy of the Report on or about April 15, 2019, the Court finds that the first significant later date which should have alerted the County to act took place about two months later.
• In other words, the County did not seek relief from the Court to protect its asserted privilege in the Report until forty days after Plaintiff’s counsel used the Report as an exhibit at Chief Jones’ deposition in front of the County Attorney; twenty-six days after the Complaint was filed against the County extensively citing the Report; and twenty-two days after the County Attorney was personally served with the Complaint.
• Each of these events marked a date when any party acting with reasonable diligence should have been moved to act, but the County was not.
• What is more, the County did not even alert Plaintiff’s counsel of its intent to assert privilege until forty days after discovering that the Report was in his possession.
• The Court finds that this substantial amount of “time taken to rectify the error” weighs heavily in favor of finding that the County waived such privilege or protection. Rather than taking “immediate action to attempt to maintain the privilege,” the County waited more than a month before seeking relief from the Court.

In denying the motion to clawback, Judge Moon did leave the county the leave to file an amended clawback motion.  Here is a copy of the decision: