Doe v. Twp. High Sch. Dist. 211

34 N.E.3d 652

Jane DOE, Individually and as Legal Guardian of Jane Doe, Plaintiff–Appellee

v.TOWNSHIP HIGH SCHOOL DISTRICT 211, Defendant–Contemnor–Appellant (Tom McNamara, Theresa Busch and Jackie Gatti, n/k/a Jackie Zydek, Defendants–Contemnors; Michael E. Kujawa, Contemnor–Appellant).

No. 1–14–0857.

Appellate Court of Illinois, First District, Fifth Division.

June 5, 2015.

Jay S. Judge, Michael E. Kujawa, and Erika G. Baldonado, all of Judge, James & Kujawa, LLC, Park Ridge, for appellant.

Kevin J. Golden, of Dudley & Lake, LLC, Chicago, and Lynn D. Dowd and Francis J. Leyhane III, both of Law Offices of Lynn D. Dowd, Naperville, for appellee.

OPINION

Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Jane Doe,¹ a special education student at Hoffman Estates High School, sued defendants Township High School District 211 (the District), two teachers and one principal, alleging negligence and willful and wanton conduct for their alleged failure to prevent another student from having sexual relations with plaintiff on multiple occasions.

¶ 2 In this appeal, the District and its attorney, Michael Kujawa, appeal a contempt order that was entered against all defendants² at their request. After an in camera review of certain documents, the trial court ordered Kujawa's client, the District, to produce two items which the District claimed were protected by the attorney-client and work-product privileges, and which the District refused to produce. The two items are: (1) the notes of Dr. Daniel Cates, the school's special education director, which he made while investigating claims of inappropriate sexual conduct at the school; and (2) a DVD with two video recordings made by Dr. Cates showing where some of the alleged conduct may have occurred.³ In order to permit the District to appeal the trial court's discovery ruling, the trial court entered the contempt order⁴ which is the subject of this appeal.

¶ 3 On this appeal, defendants ask this court: (1) to reverse the trial court's discovery order directing the District to produce the contested items; and (2) to vacate the contempt order and fine. In response, plaintiff argues: (1) this court should not consider defendants' claims because of, among other reasons, the appellate record is insufficient; (2) in the alternative, if we do address the merits of the appeal, we should affirm the trial court's discovery order; and (3) whether we affirm or reverse the discovery order, we should not vacate the contempt order and its nominal $500 fine.

¶ 4 For the following reasons, we could conclude, first, that defendants forfeited the discovery issue for appeal by failing to provide a sufficient record. Specifically, defendants failed to include the transcript of the hearing where the trial court ruled on the underlying discovery issue, which is the sole basis of the contempt order.

¶ 5 However, we are inclined to decide this case on the merits, and the affidavits of Dr. Cates and the reasons stated by the trial court persuade us that the trial court's discovery order was proper. Lastly, we vacate the contempt order, in light of the fact that it was a friendly contempt based on a good faith effort by defense counsel to secure an interpretation of an issue to serve his client and the court.

¶ 6 BACKGROUND

¶ 7 Although the allegations of the underlying lawsuit are disturbing, what concerns us on this appeal is not the subject matter of the complaint but whether certain documents are protected by the attorney-client and work-product privileges. Thus, we set forth the allegations briefly and discuss at greater length the disputed items and the procedural history surrounding the trial court's order to produce them.

¶ 8 I. Pleadings

¶ 9 A. Complaint

¶ 10 Plaintiff, and other similarly situated students, initially filed suit in 2006. We discuss here plaintiff's most recent complaint which is her seventh amended complaint, filed on October 24, 2012. In this complaint, plaintiff made the following allegations.

¶ 11 Plaintiff was a developmentally disabled student who attended Hoffman Estates High School (Hoffman). All students enrolled in the special education program were also a part of the “Secondary Work Experience Program” (SWEP). The District had employees who were required to walk the SWEP students from class to class and through the buildings.

¶ 12 Defendants Tom McNamara and Jackie Zydek were teachers in the SWEP program at Hoffman, and defendant Theresa Busch was the principal at Hoffman, which was owned and managed by defendant District.

¶ 13 Christopher Girard, another student, was arrested by the Schaumburg police department and charged as an adult with aggravated criminal sexual assault of a minor child on July 21, 2004, while he was attending Hoffman; and defendants knew or should have known that Girard had been so charged. Defendants knew or should have known that Girard was sexually deviant, and that it was not safe for him to interact with developmentally challenged female students.⁵ From July 2004 until October 2005, while attending Hoffman, Girard would expose his penis, masturbate, and touch the breasts, vaginas and buttocks of female students during class at Hoffman in view of his teachers, including defendants McNamara and Zydek.

¶ 14 From August 2005 to October 2005, plaintiff was a student in McNamara's physical science class, which was taught in the wrestling room; and she was sexually assaulted by Girard during McNamara's class. Girard assaulted her by touching her breasts, vagina and buttocks; by inserting his penis into her vagina and buttocks; and by making her touch his penis.

¶ 15 On September 21, 2005, parents of another female student in the SWEP program informed defendant Zydek that there was a closet or room in the science room in which Girard would have sex with the girls during class, and that he also had sex with them in the gymnasium during the lunch period. Zydek said that she would talk to McNamara and others to determine if they noticed anything.

¶ 16 Plaintiff alleged that defendants acted negligently, as well as willfully and wantonly.

¶ 17 B. Defendants' Answer

¶ 18 In their answer to plaintiff's seventh amended complaint, defendant District admitted that it owned and operated Hoffman; that it employed defendants McNamara and Zydek who were teachers in the SWEP program; that defendant Busch was the principal at Hoffman; that plaintiff was a developmentally disabled student who was also a SWEP student at Hoffman; and that defendant McNamara taught some of his physical science classes between August and October 2005 in the wrestling room. Defendants also admitted that “on or about 9/21/05 [defendant] Zydek agreed to discuss with other District employees whether they had noticed anything unusual with [Christopher] Girard or students in the SWEP Program.” Defendants denied most of plaintiff's other allegations.

¶ 19 Defendants asserted six affirmative defenses, which alleged either some form of immunity or no private right of action.

¶ 20 II. Dr. Cates' First Affidavit

¶ 21 The subject of this appeal concerns notes and two video recordings made by Dr. Daniel Cates, the District's director of special education. Discussing the creation and content of these items, Dr. Cates stated in an affidavit, dated January 16, 2014, that:

“1. In October 2005, I served as the Director of Special Education for Township High School District 211.

2. As the Director of Special Education, it was within my typical duty to perform requests made by the Superintendent, Dr. Roger Thornton, and to work with a number of different attorneys surrounding student matters.

3. Upon learning that one or more students with a cognitive impairment and served in the special education program at Hoffman Estates High School may have been engaged in sexual relations of any kind on the campus, I was asked by then-Superintendent Dr. Roger Thornton to investigate whether I could locate any information to indicate culpability or legal exposure on the District's part.

4. I was asked to gather and record a complete understanding of what had happened surrounding the report that multiple students had been involved in a matter of sexual relations taking place on the campus of Hoffman Estates High School and to provide a summary of my findings to the following individuals: Superintendent, Dr. Roger Thornton; Associate Superintendent, Mr. David Torres; and legal counsel, Mr. Mike Kujawa[.]

* * *

6. My investigation included multiple interviews with staff members at Hoffman Estates High School for the following purposes related specifically to potential legal exposure and scrutiny in any potential lawsuit * * *:

(a) To understand the manner in which students from the junior high schools were reviewed and recommended for certain programs * * * and specifically into the special education program at Hoffman Estates High School;

(b) To understand and record the sequence of actions and traffic patterns that students likely followed in order to engage in the alleged behavior on the campus of Hoffman Estates High School;

(c) To review the manner in which lower-functioning students' whereabouts are known, tracked or recorded, specifically during the lunch period at Hoffman Estates High School.

7. Following my interviews, I met with Dr. Thornton, Mr. Torres and Mr. Kujawa in the superintendent's conference room to summarize what I had gathered and learned.

8. It has been my practice to record personal notes on yellow legal-style notepads or personal stationery, when available.

* * *

11. In addition, I created a video file of the pathway that I believed the student might have taken in order to get to the location where the alleged events were reported to have taken place. This video was shared one time only during the summary meeting held with Dr. Thornton, Mr. Torres and Mr. Kujawa.

* * *

13. My notes were stored in * * * the same location in my office from the time they were created until the time they were

...