Doe v. Kirkwood R-7 Sch. Dist.

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JANE DOE, Plaintiff, v. KIRKWOOD R-7 SCHOOL DISTRICT, Defendant.

No. 4:21-cv-01130-AGF

United States District Court, E.D. Missouri

December 15, 2023

MEMORANDUM AND ORDER

AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Kirkwood R-7 School District's (“KSD”) Motion to Quash and/or Motion for Protective Order. ECF No. 47. Plaintiff timely filed her Response. ECF No. 50. KSD filed its Reply. ECF No 55. Plaintiff then requested an opportunity to file additional briefing to respond to some matters that were first raised in KSD's Reply. ECF No. 58. The Court granted Plaintiff's motion (ECF No. 59), and Plaintiff filed its Sur-Reply (ECF No. 60). This matter is now fully briefed and ripe for disposition. For the reasons explained below, the Court will grant KSD's motion in part and deny it in part.

Background

A. Plaintiff's Complaint

Plaintiff first filed this case in the Circuit Court of St. Louis County on July 16, 2021, raising claims against KSD and Defendant John “Jack” Collier related to sexual abuse allegedly perpetrated by Defendant Collier against Plaintiff while she was a student at Kirkwood High School in the 1980-81 school year. ECF No. 4. Plaintiff raised claims against Mr. Collier for sexual assault and violations of her Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983. Against KSD, Plaintiff raised a claim for violation of her constitution rights under § 1983 and a claim for violation of Title IX. On September 16, 2021, Defendant KSD removed the case to this Court based on federal question jurisdiction under 28 U.S.C. § 1331. ECF No. 1.

Following removal, Plaintiff filed an unopposed motion to amend her Petition to remove Mr. Collier as Defendant because he is deceased. ECF No. 39. The Court granted Plaintiff's motion. ECF No. 41. Plaintiff subsequently filed her First Amended Complaint, which maintains two claims against KSD Count I for violation of Title IX and Count II for violation of 42 U.S.C. § 1983.

B. Relevant Facts

The following facts are taken from the Parties' briefing and attached exhibits.

In or around July 2020, KSD became aware of posts made by KSD alumni on social media platforms alleging instances of sexual abuse of KSD students by KSD staff. Several of these posts alleged that KSD employees were aware of the allegations of sexual abuse but did not take appropriate action.

In response to these allegations on social media, on or around July 14, 2020, KSD issued a request for proposals (“RFP”). The RFP directed interested organizations to submit proposals to conduct an independent assessment and investigation of KSD's culture and climate related to the reporting and handling of allegations of sexual abuse, sexual misconduct, and inappropriate behavior. The RFP's Project Overview provides the following description of the purpose of the investigation:

[KSD is] seeking to better understand:

• The forces that are currently shaping the district and school culture and climate at KSD around [reporting and handling of allegations of sexual abuse, misconduct, and inappropriate behavior].

• Students, staff, and parent experiences or perceptions that are currently affecting the school district's culture and climate, that may be hindering reporting, or undermining confidence that there have been timely and appropriate responses and interventions.

• An assessment of the impact of current district and school culture and climate on students, staff, and families.

• Best Practices to receive and address student, parent, and teacher concerns; support students, parents, and teachers who have been negatively impacted; and to be a leader in positive school culture.

ECF No. 50-1 at 62. The RFP also provides a description of the investigation's goals:

The overarching goals of the this project are to identify and investigate whether there have been previously unreported incidents or failures to take prompt and appropriate action in response to complaints, whether students, staff and parents have confidence in reporting and know to whom and how they may do so; whether there has been appropriate follow-through in terms of consequences and supports when complaints are substantiated, and then, equally important, to identify, conduct trainings on, and help implement strategies to promote a positive school climate and culture that includes but is not limited to:

• Opportunities to grow/expand students, staff, and parent experiences or opportunities that are positively affecting the culture and climate of our district/schools.

• Immediate, short, and long-term interventions to bolster the district/schools' climate and culture.

• Amending policies and practices and/or adding new policies and practices to better address the issues raised.

• Revising how the district/schools communicates and/or enforces policies and practices that promote positive school culture and climate.

Id. The RFP states that deliverables may include:

• Research via surveys, focus groups, and/or interviews (internal and external)

• Facilitation of private and public forums (internal and external) • Facilitation of private meetings between individuals (internal and external)

• Investigation of complaints, reporting of incidents, and actions taken

• A written report on official findings . . .

• Presentation(s) to school staff, district staff, and the Kirkwood Board of Education . . .

Id. at 62-63.

One of the several firms to submit proposals to KSD was Encompass Resolution, LLC. Encompass is an investigative firm solely owned by attorney Ann Molloy. Encompass submitted its proposal to KSD on August 4, 2020. ECF No. 50-1 at 139. On August 12, 2020, KSD invited Encompass to interview for the project. Id. at 240. After the interview, KSD requested that Encompass answer some additional questions. Id. at 388. In its response, Encompass stated that “[e]ach [Encompass] team member on this project is willing to sign a non-disclosure agreement and understands the obligation to report any suspected crimes we may become aware of during this process to law enforcement directly.” Id. at 397.

In September 2020, after conducting several interviews with firms seeking to conduct the investigation, KSD retained Encompass. Encompass was tasked with conducting a comprehensive review of past allegations of sexual abuse or misconduct at KSD. Encompass was also to advise KSD as to the sufficiency of its investigations into past allegations. Encompass was granted access to confidential personnel files of thirty (30) staff members who had been previously accused of engaging in inappropriate conduct with students. As part of its investigation, Encompass interviewed former KSD employees, third-party witnesses, and alleged victims.

After concluding its investigation and review, Encompass produced its “Independent Assessment & Investigation of Culture and Climate” (the “Report”). In June 2021, Encompass presented a final version of its Report in a closed executive session of KSD's Board of Education. Appended to the Report was Attachment A, a supplemental report on Encompass' review of the personnel files of employees previously accused of sexual misconduct. Attachment A included Encompass' analysis of the personnel files, an analysis of KSD's investigation into the allegations, and summaries of interviews with individuals associated with the allegations. KSD later publicly released the Report,^[1]but has never made Attachment A public.

After Plaintiff filed her initial Petition in 2021, the Parties conducted discovery. On June 2, 2022, in response to one of Plaintiff's requests for production, KSD produced a privilege log asserting that both the attorney-client privilege and the work product doctrine shielded a twenty-page document identified simply as “Report Attachment.” ECF No. 48-2. KSD's privilege log identified the author of the document as “Encompass Resolution (Independent Legal Counsel Hired by KSD).”

On October 3, 2023, Plaintiff issued a third-party subpoena to Encompass under Fed.R.Civ.P. 45. ECF No. 48-3. The subpoena commanded Encompass to produce the following materials:

1. Any and all documents related to Encompass Resolution's independent assessment and investigation . of [KSD].

2. Any and all witness statements obtained during the course of the investigation;

3. Any and all documents obtained from [KSD] during the course of the investigation;

4. Any and all documents related to alleged sexual harassment, sexual discrimination, sexual abuse, and/or sexual misconduct obtained as a result of the investigation;

5. Any and all documents related to [KSD]'s Title IX, sexual discrimination, sexual abuse, sexual misconduct, and/or sexual harassment policies obtained during the investigation;

6. Any and all documents that mention and/or reference David Shapleigh;

7. Any and all documents that mention and/or reference Carol Hotze Hermann;

8. Any and all documents related to complaints of alleged misconduct committed by David Shapleigh;

9. Any and all reports (including drafts) written by Encompass Resolution employees regarding the investigation;

10. Any and all correspondence with [KSD] employees, past and present, regarding the investigation;

11. Any and all correspondence with attorneys for [KSD];

12. Any and all correspondence with alleged victims of sexual abuse/harassment/discrimination at [KSD];

13. Any and all emails related to the investigation;

14. Any and all proposals to [KSD] regarding the investigation;

15. Any and all contracts between Encompass Resolution and [KSD] for the investigation;

16. Any and all pictures obtained during the investigation;

17. Any and all videos obtained during the investigation;

18. Any and all recordings obtained during the

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