Wartell v. Purdue University Cause No.

1:13-CV-99 RLM-APR (N.D. IND 2014)

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Nature of the Case

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Facts

P asked for a waiver of the university's mandatory retirement age, and D, through President Cordova, declined the request. P claims that Cordova then harassed and discriminated against him on the basis of sex and age. P filed an internal complaint against Cordova. P expressed concern about the fairness of a process in which people who answer to the president would investigate and resolve his claim against the president. The board of trustees proposed a special one-time-only method to address the complaint. Trimble, a prominent Indianapolis attorney, was to serve as the investigator, to be paid by D. Trimble was retained as an attorney for D. P didn't learn that Trimble had been retained in that capacity until much later. Trimble interviewed the president, P, and about twelve others. When he interviewed P, Trimble didn't disclose that he was acting as D's attorney. Trimble prepared his report and submitted it to - and only to - the three-trustee panel. The panel found that no discrimination occurred, and sent its decision to the president, and P. P asked to see the report and D denied his request under the Indiana Access to Public Records Act. The Circuit Court ordered D to release the Trimble report and associated documents, finding that D was equitably estopped from claiming either the attorney-client privilege or the work-product privilege. D appealed. The Court of Appeals of Indiana unanimously affirmed on the basis of equitable estoppel. D had concealed from P that it had retained Trimble as an attorney rather than as an independent investigator. P filed suit in this court for sex discrimination, violation of due process, and breach of contract. P filed a request for the production of the report and associated documents. D refused and P moved to compel. Judge Rodovich ruled against D with respect to the work-product doctrine, because the report and documents hadn't been prepared in anticipation of litigation. Judge Rodovich rejected D's attorney-client privilege claim. He set forth the eight-part test our court of appeals articulated in United States v. White. Trimble was to perform investigative tasks a non-lawyer employee would perform in a less extraordinary case. Trimble interviewed people and wrote a recommendation to the three-trustee panel. No lawsuit was pending or imminent. Trimble didn't tell P that he was representing D; an Indiana attorney generally must make such a disclosure when the organization he represents might have interests adverse to the officer with whom the lawyer is dealing. The judge ruled for P and D objected.