District to turn over key files
The attorney hired to assess Ooltewah High School’s hazing culture must turn over all of her files later this month to the civil lawyers representing two rape victims from the 2015 basketball trip.
Attorney Courtney Bullard doesn’t, however, have to disclose any communications she had with the Hamilton County Department of Education that specifically deal with the legal advice she was asked to provide as part of her review.
Put a different way, the department created a shield with Bullard, because any legal discussions between her and the school district’s attorney, Scott Bennett, are private, some attorneys said.
Some attorneys who know of the case but aren’t involved say that’s a strong legal maneuver, because the public may never know if Bullard was influenced to keep something out of her public, 24-page report if those conversations are private.
Others say more transparency is a must for the families and students in the school system, but applauded the department for mobilizing a thorough investigation in the first place.
“For them to identify there’s possibly a problem and get someone in there, that should be heavily rewarded,” said Colby Bruno, senior legal counsel at Victim Rights Center, a national firm that represents victims of sexual assault.
“I’m not on their side, but at the same time, it’s unusual that you would see all the inner workings of the investigation.”
Efforts to reach Bennett, one of the school district’s attorneys in the federal litigation, were unsuccessful this week.
The issue is whether Bullard’s work falls under attorney-client privilege.
Bullard’s March 2016 contract asked her to conduct an independent review into Ooltewah’s basketball program after the December trip to Gatlinburg, Tenn., where a freshman was raped with a pool cue. But it also called on her to provide legal advice, meet with Bennett and occasionally discuss her progress with the school board.
One section addressed the conflict of being impartial while providing criticism and legal advice: “As a condition of this representation, Spears Moore [the law firm where Bullard works] will adhere to all applicable conflict of interest rules.”
Such agreements are normal, a few lawyers said, because officials need to protect sensitive information if they want to conduct a proper and thorough investigation. But they can also use it to their advantage by shielding it under attorneyclient privilege.
“If any smoking gun is discovered, they want it protected, and they want to know it first,” civil attorney Jay Kennamer said of the school district.
Attorneys for the rape victims began hunting for that smoking gun in March when they asked for Bullard’s file, records show. But the school district pushed back for months, claiming her work was protected under attorneyclient privilege.
A judge scheduled a hearing this week in U.S. District Court. Then, days before, the school district changed course.
It made Bullard an expert witness and agreed to turn over the file by Oct. 18. Federal rules say an opposing legal team is entitled to see what an expert is basing their opinion on. So that means interview notes, memos, early drafts and other transcripts and work products, according to a federal order filed Thursday.
One thing it doesn’t include: Communications.
The same federal rule says any conversations between an attorney and their expert witness remain private.
Justin Gilbert, one of the attorneys for the rape victims, declined to comment about the department’s shift.
But court records show a judge fined Hamilton County last month when its attorneys didn’t share possible evidence in a timely manner.
“I recognize that [the victims’] counsel have requested a great deal of information from Hamilton County, and Hamilton County’s attorneys have produced a large volume of documents and information,” U.S. Magistrate Judge Christopher Steger wrote in a Sept. 20 order.
“That said, the District Court Judge advised counsel that the Court would expect the parties to … adhere to all applicable deadlines.”