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Waiver of privilege: Delay moots effort to ‘claw back’ in-house report


Despite a claim of attorney-client privilege, a county government cannot claw back a candid report warning the county about a “male dominated” culture in its fire and rescue department.

A federal judge says because Bedford County lawyers waited 40 days to object to a plaintiff’s possession of the report, the county had waived the right to claim attorney-client privilege and attorney work-product protection.

What was intended as a confidential in-house document prepared for specially retained counsel is now fueling a civil rights lawsuit against the county. The suit claims county officials allowed pervasive sexual harassment by male employees against female employees. A stationhouse bunkroom was labelled “The Love Shack” and “The Shagging Shack” because of sexual activities there, the suit alleges.

A 19-year-old former rescue squad volunteer contends in the lawsuit that she was assaulted and sexually harassed by a field lieutenant who was later jailed for sexual misconduct.

Moon’s opinion denying the county’s clawback motion is Doe v. Bedford County (VLW 020-3-293).

Lieutenant takes felony plea

In 2018, the Bedford County administrator became concerned about possible sexual harassment in the fire and rescue department and hired labor and employment lawyer Victor O. Cardwell of Roanoke to oversee an investigation, according to Moon’s summary of events. The administrator acknowledged he hired outside counsel to protect the resulting report from disclosure. A sergeant in the sheriff’s office was to prepare the report.

The resulting report stated on the first page: “Prepared for Victor O. Cardwell, Esq. This report is confidential; subject to the Attorney-Client Privilege; and the attorney work-product immunity.”

On March 15, 2018, the administrator emailed a copy to county attorney Patrick J. Skelley II, but Skelley did not review it at that time, Moon said.

In June 2018, the county prosecutor indicted Fire & Rescue Field Lt. Larry S. Hawkins for felony computer solicitation and misdemeanor assault and battery.

Hawkins, 54, later pleaded guilty. He is serving a three-year sentence at Blue Ridge Regional Jail.

Civil lawsuits

One of Hawkins’ victims – identified only as Jane Doe – sued him in state court on Jan. 7, 2019. Her lawyers then issued a third-party subpoena duces tecum seeking county records related to an alleged hostile work environment.

In April, the county attorney produced a batch of documents without any mention of withholding documents for privilege. Skelley – the county attorney – contends he did not turn over the confidential report, but Doe’s lawyers say the report was the first item in the stack of documents produced.

Doe’s lawyers took the deposition of Fire & Rescue Chief John Jones on June 14, 2019, and questioned Jones about the report. Skelley – the county attorney – attended, but made no objection to the use of the report. He even referred to the report in his questions.

Citing the warnings in the report, Doe’s lawyers brought a civil rights action in federal court on June 28, 2019, claiming sexual harassment, abuse and assault. The lawsuit quoted extensively from the report.

The county filed a motion to dismiss July 24 and – the next day – filed a motion to claw back the report. On Sept. 23, Moon ordered the report produced for his in camera review.

Accidental disclosure

Moon concluded it did not matter whether the report is protected by attorney-client privilege or work-product immunity because the county had waived any privilege or immunity.

The county “inadvertently” disclosed the report, in Moon’s view. Although the county attorney contended there must have been a leak of the document, he failed to offer any evidence on the source of the leak, Moon said.

Reviewing declarations from the individuals involved, Moon found it significant that county officials did not seem to have had any discussion about the report being responsive to the subpoena, although privileged.

“The Court finds it more likely that the Report was included in the response by accident rather than by subterfuge,” Moon wrote.

Delay doomed privilege claim

Considering a waiver of the privilege, Moon used factors from both a Supreme Court of Virginia test and from Rule 502(b) of the Federal Rules of Evidence. But the key factor was the county’s unexplained delay in trying to recover a document that was clearly in the hands of an adversary.

“The Court cannot look past the fact that the County was aware of and failed to act in a timely way to prevent further disclosures of the report,” Moon wrote.

The county did not ask for a clawback until 40 days after plaintiff’s counsel used the report as a deposition exhibit in front of the county attorney, 26 days after filing of a complaint that extensively cited the report and 22 days after the county attorney was personally served with the complaint, Moon pointed out.

The delay “weighs heavily in favor of finding that the County waived such privilege or protection,” Moon said.

Mediation scheduled

Even questions about the plaintiff’s tactics don’t change the outcome, Moon said.

“[C]ounsel for Plaintiff would have been well advised to have sought a resolution of any question of privilege before making use of the Report in the original Complaint,” Moon wrote. But the conduct-of-counsel arguments failed to sway Moon in his conclusion that the party claiming privilege had failed to act promptly to protect that privilege.

Doe is represented by Gary M. Bowman and Easter P. Moses of Roanoke.

“The case is currently scheduled for mediation, and the plaintiff hopes the case can be resolved by settlement so she can put this nightmare behind her,” Bowman said in an email. He said the decision is helpful, especially with little Fourth Circuit authority on inadvertent disclosure.

Bedford County is represented by Jennifer D. Royer of Roanoke, who was unavailable for comment.