Hite v. The University of Montana, et al. - National Association of ...

John S. Henson, District Judge
Department No. 2
Fourth Judicial District
Missoula County Courthouse
Missoula, Montana 59802
Telephone: (406) 523-4772
MONTANA FOURTH JUDICIAL DISTRICT COURT, MISSOULA COUNTY
Dept. No. 2
DONALD HITE, Plaintiff
-vs-
THE UNIVERSITY OF MONTANA, at
Missoula, Montana, a Montana
Educational Entity; and DAVID
SCHULDBERG; CHRISTINE FIORE;
and HERMAN WALTERS, individually, Defendants
Cause No. DV-98-86824
OPINION AND ORDER
The matter before the Court is the parties' stipulation for in camera
review. The Court has reviewed each document contained within the files and
referenced by the Defendants' lengthy privilege log. The documents reviewed
are originals and originals with accompanying redacted copies which have
been supplied to Plaintiff. Defendants have cited attorney-client
privilege, attorney work product and student confidentiality as bases for
withholding documents in toto or in part through redaction. The Court will
address the privileges one by one.
1. Attorney-Client Privilege
Plaintiff contends that attorney-client privileges have traditionally
been and must necessarily be narrowly construed, particularly where the

claim is asserted by a governmental entity. He cites Kuiper v. District
Court, (1981) 193 Mont. 452, 632 P.2d 694, for the premise that if
contents of a communication cannot be accurately characterized as being
legal advice, the privilege does not attach. More importantly, Plaintiff
maintains, careful scrutiny must be exercised to determine whether an
attorney-client relationship even exists in many instances here.
Plaintiff contends that David Aronofsky is in-house counsel for the
University of Montana as an entity, and not for individual employees of
the University. Plaintiff states that if a privilege exists, it may only
attach to communications between Aronofsky and the University as an
entity, which would include the University's administrators, as opposed to
various faculty members. Plaintiff maintains that Aronofsky himself
asserted that he was not representing faculty members.
Defendant counters that Montana, rather than the narrow focus
promulgated in federal cases, takes a broad approach to attorney-client
privilege, as noted in Palmer v. Diacon, (1993) 261 Mont. 91, 861 P.2d
895. Further, Upjohn Co. v. United States, (1981) 449 U.S. 383, 101 S.Ct.
677, held that in-house counsel in a corporate setting are given the same
deference as outside counsel for the purposes of extending attorney-client
privilege. That case has been cited with approval by the Montana Supreme
Court in State ex rel. U.S. Fidelity & Guaranty Co. v. Dist. Court, (1989)
240 Mont. 5, 783 P.2d 911. As noted by Defendants, the concept that
faculty might need to resort to outside counsel in every instance where
allegations are made against them in their professional capacities
to insure privilege is neither realistic nor economically feasible.
The monograph listed as Defendants' Exhibit A, Understanding
Attorney-Client Privilege Issues in the College and University

Setting, is particularly efficacious in its analysis. It notes:
Who specifically is the client of a university counsel The obvious
answer is "the university.” But because different people may act or speak
on behalf of the university, the question raises an issue of considerable
importance: to what extent does the university have a privilege with
respect to communications between members of its community and its counsel
Again, it depends in part on the law of the local jurisdiction. To that
end, two principal concepts have emerged, the "control group" test and the
rule of Upjohn.
In jurisdictions employing the "control group" test, the only
communications that are privileged are those between counsel and the
persons in positions to "control" or take substantial roles in deciding the
university's response to legal advice. If otherwise privileged
communications are made in the presence of, or shared with, persons who do
not qualify as "control group" employees, a court is likely to hold that
the communications are not privileged (because the communications were not
intended to be confidential) or, alternatively, that the privilege has been
waived.
The United States Supreme Court, however, rejected the "control
group" test in Upjohn Co. v. United States. Rather than establish a bright line
test, the Court took a broader approach to the question of privilege, and
indicated that its existence depends on whether the communications are made
for purposes of enabling an institution (in that case, a corporation) to
seek or receive legal advice' whether the communications are made at the
request of an employee's supervisors to enable the institution to receive
legal advice; and whether the communications pertain to matters within the
employee's duties.
*****
…a policy of limiting access to university counsel would present some
significant practical challenges, and it could come at the expense of the
considerable benefits that flow from an open-door policy that facilitates
“preventative” lawyering by university counsel.
With the principles set forth in Upjohn in mind, the Court reviewed
the numerous documents in which attorney-client privilege has been
asserted. To a one, the Court found that assertion of the privilege has
been proper. The communications were intended to be confidential and were
for purposes of seeking, obtaining or providing legal advice. Those
documents with additional notation were properly redacted as necessary and
provided.
Additionally, the Court cites with approval the following from
Defendants, brief:

Plaintiff proceeds from the faulty factual premise that, because he
had complaints being considered in the student complaint process
almost continually from May 1995 until his dismissal, any discussions
between Mr. Aronofsky and staff of the University about him cannot be
considered privileged. There were a multitude of other issues upon
which legal advice had to be sought by the faculty and staff during
that extended period of time. They cannot be deprived of the
privilege simply because Mr. Hite had chosen to file a student
complaint. Additionally, the pendency of the student complaint
process does not override the important public policy reasons
underlying the privilege.
2. Work Product
As noted in the Defendants’ preceding paragraph, much work was
generated by Aronofsky. These documents represent work activities and
mental impressions. The Court does not concur in Plaintiff's assertion that
these were simply "administrative" matters to which no privilege may
attach. The work-product doctrine protects materials prepared in
anticipation of litigation, even though litigation is not in progress. Rule
26(b)(3), Mont.R.Civ.P. It took no stretch of imagination to speculate on
the possibility of litigation in these proceedings. The Court concludes
upon review that the documents are, in fact, protected by the work product
doctrine. No showing of need has been made here that would override the
doctrine.
3. Waiver.
Plaintiff suggests that privileges were waived, and attempts to
support his contentions with various documents grouped as Exhibit G to his
brief. The majority of these documents are handwritten notes, many of vague
or incomprehensible content. Many do not contain any matters which appear
to be legal advice or make reference to any such advice.
The inclusion of third persons as part of the communication does not
automatically equate with waiver of privilege. The Court concurs with

Defendants that group communications regarding matters in which all members
have involvement do not constitute waiver of privilege. The Court finds no
waiver on this basis.
It was obvious to the Court in reviewing the privilege log's contents
that Defendants had been exceedingly careful in redacting those portions
and only those portions of documents which were entitled to protection.
Nothing within the files bore the hint of intentional waiver.
Finally, Plaintiff's suggestion of a tort doctrine waiver is not
borne out by the contents of the files.
In sum, the Court finds no support for waiver of privilege in its
review of the many documents referenced within the log.
4. Student Confidentiality
A handful of documents in which Defendants' have withheld solely on
grounds of student confidentiality are presented here. All of those
documents clearly deal with grades, qualifications and other personal
matters of various students within the graduate program. If Plaintiff
obtains permission of students for divulging this information, the Court
would allow for their dissemination. However, as these documents presently
exist, they are replete with information that is clearly subject to
confidentiality pursuant to Montana and Federal law. The Court finds they
are not subject to production.
DATED this 14 th
day of April, 20'00.
JOHN S. HENSON District Judge
cc: Brian L. Delaney
/ Gary L. Graham